Family Law (Divorce) Bill, 1996: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Equality and Law Reform (Mr. Taylor)

As Minister for Equality and Law Reform I am happy to bring this very important Bill, the Family Law (Divorce) Bill, 1996, before the House. This Bill, which opens a new chapter in family law, has been made possible by the judgment of the people who, on 24 November 1995, voted to remove the constitutional prohibition on the enactment of legislation on domestic divorce and to replace it with terms on which persons may seek such decrees from our courts. The sovereignty of the people, so central to our system of constitutional law, has been exercised in the 1995 referendum and has withstood challenge to it in the highest courts of our land. The Bill keeps complete faith with what the people were told they were voting for in that referendum.

For the first time, the House has before it a Bill which gives the courts the necessary powers to dissolve a marriage that is over in everything but name. The Bill and the constitutional amendment on which it stands are balanced and compassionate measures which form part of a modern, comprehensive and just response to the problems of marriage breakdown.

The Bill responds to the real needs of many people in society. The latest labour force survey taken last year indicates that the figure for separated persons has now risen to over 85,000, an increase of 17,000 on 1992. Their welfare and that of other family members remains at the heart of the issue.

The absolute prohibition on divorce was, to all too many, harsh and unbending and prevented the legislature in a modern society from addressing properly the position of those tens of thousands of persons whose marriages have irretrievably broken down, many of whom had entered second relationships and wished to remarry.

As in many other countries with cultural traditions like our own and a strong family ethos, the legal option of divorce and the right to remarry will be available to members of society whose marriages have ended. This Bill deals comprehensively with the new situation that is created by the fifteenth amendment of our Constitution. It makes provision for the exercise by our courts of the jurisdiction conferred by the Constitution to grant decrees of divorce. It enables the courts to make orders in or after proceedings for divorce to deal with important questions such as support of spouses and children, distribution of property and custody and upbringing of children.

The Bill is the culmination of a very large programme of reform of family law and administrative measures which I initiated over the last few years so as to create a proper framework to deal with the multiplicity of issues that arise in the context of marriage breakdown.

Those reforms, combined with other reforms in our family laws in the past decade, have been of staggering proportions compared to previous decades since the foundation of the State. It has been stated on several occasions in recent debates on family law that, in the past decade, 18 Bills on the subject of family law have been passed by both Houses of the Oireachtas. That is a record of which the Legislature can be proud. It clearly demonstrates that family law is a priority. The various measures have been of great significance in their own right. The measures which laid specific foundations for divorce legislation were, of course, the 1989 judicial separation legislation, the 1992 White Paper on marital breakdown and the Family Law Act, 1995. The support of both Houses for the dignified way they debated the Government's proposal for the divorce referendum contained in the Fifteenth Amendment of the Constitution Bill, 1995, was also of major significance.

The important associated measures, apart from the Family Law Act, 1995, which I promoted in the run up to the referendum were the Maintenance Act, 1994, the Civil Legal Aid Act, 1995 and the Domestic Violence Act, 1996. In addition, there has been a major expansion in resources for civil legal aid and family mediation and counselling services. Other Ministers have been responsible for other important measures in the social welfare and child care area as well as the courts service. Our laws and support services demonstrate a great commitment to support persons who suffer marriage breakdown and the children of those marriages. Those laws and support services will continue to be reviewed and updated as necessary by this Government.

The Government is proud to be associated with this Bill which is modern in its approach and is intended to give our courts all necessary power to settle disputes, with due regard for the administration of justice, in complex social and legal matters concerning the family.

The main features of the Bill are contained in Part II which sets out the grounds on which a court may grant a decree of divorce. These are as prescribed in the Fifteenth Amendment of the Constitution Act, 1995. This Part of the Bill also contains safeguards to ensure that both parties are aware of alternatives to divorce proceedings and to assist reconciliation. Part III enables the court to make various orders in support of spouses and dependent children following the granting of a decree of divorce. The orders may relate to maintenance, lump sums, property, occupational pensions and to a spouse's interest in the other spouse's estate. Part IV contains amendments to the tax code relating to income tax and capital taxes — stamp duty, capital acquisitions tax, capital gains tax and probate tax — which will ensure that couples who are divorced will not be disadvantaged under the tax code.

Part V includes miscellaneous provisions relating to, for example, the courts' jurisdiction in divorce proceedings. I turn now to the specific provisions of the Bill.

Sections 5 to 9 are key provisions regarding the obtaining of a decree of divorce. Section 5 (1) details the circumstances in which a court may, in exercising the jurisdiction conferred by new Article 41.3.2º of the Constitution, grant decrees of divorce. The section, as it must, replicates the terms of the constitutional amendment which was approved by the people in the 1995 referendum.

In exercising its jurisdiction in relation to divorce, the court must be satisfied that each of three specific conditions has been fulfilled, namely, that at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years; there is no reasonable prospect of a reconciliation between the spouses and such provision as the court considers proper having regard to the circumstances, exists or will be made for the spouses and any dependent members of the family.

These conditions have already been the subject of long and detailed debate in the House on the Fifteenth Amendment of the Constitution Bill. They have been voted on by the people. They are enshrined as Article 41.3.2º of the Constitution and cannot, of course, be the subject of change by law.

Section 5 (2) is of importance in relation to children. It allows the court, upon granting a decree of divorce, to give directions regarding the welfare, custody of, or right of access to a child under section 11 of the Guardianship of Infants Act, 1964, as if an application had been made under that Act. The purpose of the subsection is to streamline court procedures in relation to children which can be invoked under the 1964 Act in divorce proceedings.

Sections 6 and 7 contain safeguards designed to ensure that parties to divorce proceedings are fully aware of the alternatives to such proceedings, including the availability of mediation to effect a separation or a divorce on a basis agreed between both parties. The safeguards are also designed to assist attempts at reconciliation. The solicitors for both parties will have an obligation in law to ensure that the provisions of these sections are complied with and will have to provide a certificate to the court to this effect at the time divorce proceedings are instituted. It may be that even by the time the parties get to court they may be in a position to settle some of their differences.

In this context, section 8 empowers the court to adjourn proceedings either to assist reconciliation or in order to facilitate both spouses in reaching agreement on some or all the terms of a divorce settlement. The provisions in sections 6 and 7 are similar to those which apply in separation proceedings. The purpose is to inform and encourage parties about options to settling disputes in court over matters that perhaps could be settled for the most part out of court with less cost, acrimony, resentment and bitterness and for the good of the parties concerned and their children.

The effect of the granting of a decree of divorce by the court by virtue of section 9 will be the dissolution of the marriage and each of the parties to a marriage that is so dissolved will thereby be in a position, if they so wish, to marry again.

Part III assigns to the court extensive powers in divorce proceedings to make financial, property adjustment, pension adjustment and other ancillary orders in a way that is designed to do justice to both parties and to children of the family. The provisions in section 10 deal with preliminary type orders that may be dealt with by the court. They allow the court, before deciding on an application for a decree of divorce, to make various orders provided for under the Domestic Violence Act, 1996, namely, a safety order, a barring order, an interim barring order or a protection order and also to make custody and access orders and orders for the protection of the family home and contents.

Sections 11 and 12 are, in one form or another, concerned with the question of the maintenance of a spouse and dependent children. Section 11 allows the court to make interim type maintenance or lump sums payments pending the determination of an application for a decree of divorce. Provision for interim lump sum payments is intended to cover situations where there may be hardship or where immediate bills have to be paid by a spouse. Section 12 provides for the making of orders for periodic payments, secured periodic payments and lump sums for the support of a spouse or dependent children. The lump sums may be ordered to be paid by instalments and to be secured.

Section 12 (6) gives important powers to the courts to order attachment of earnings at the same time as maintenance is ordered to be paid. Before deciding to make such an attachment of earnings order the spouse who is to make the payments must be given an opportunity to make representations in relation to the matter. The previous failure of the spouse to maintain the other spouse and any children would be an obvious consideration for the court to take into account. The purpose of the subsection is to reduce, where possible, the need for a dependent spouse to engage in subsequent court proceedings for enforcement of maintenance.

Sections 13 and 14 are the provisions which allow the courts in divorce proceedings to redistribute property as between spouses for the benefit of a spouse and any dependent children. The word "property" in the Bill, as in the case of judicial separation legislation, is not confined to the family home. It includes any form of property be it the family home, a business, shares in a company and money in bank, post office or building society accounts.

Section 13 provides that the court may make the order for the transfer of property from one spouse to the other or to any dependent family member, an order for the settlement of property, an order to vary for the benefit of the other spouse, or a dependent family member, or both, any ante-nuptial or post-nuptial settlement made on the spouses, or an order extinguishing or reducing the interest of either of the spouses under a settlement of property.

Under section 14 it will be possible for the court to give one spouse the right to occupy the family home to the exclusion of the other spouse. The right may be limited in duration. It may, for example, apply for the duration of the occupant spouse's lifetime. Alternatively, the court may direct the sale of the family home subject to such conditions as the court may think proper and provide for the apportionment of the sale proceeds between the spouses concerned. In either case, the court will be required to take into consideration the need to provide proper and secure accommodation both for a spouse and for dependent family members. Section 14 also allows the court in divorce proceedings to make certain orders under existing statutes, including the Family Law Act, 1995, the Family Home Protection Act, 1976, and the Domestic Violence Act, 1996.

To further ensure that proper provision in the circumstances can be made for a spouse and dependent children, section 15 enables the court to make an order for the assignment, in whole or in part, of a spouse's interest in a life insurance policy in favour of the other spouse or dependent family member or an order requiring a spouse to take out a life assurance policy in favour of the other spouse or dependent family member. These orders are designed to supplement or substitute for, where necessary, other orders in support of a dependent spouse and children.

In the Family Law Act, 1995, I made provision for what should happen to occupational pensions in the context of judicial separation and where a foreign divorce is recognised in the State. Section 16 makes similar provision where domestic divorce is concerned. Section 16 (2) allows the court, following the grant of a decree of divorce and on application to it by either of the spouses concerned, to make a pension adjustment order designating or earmarking the whole or part of the retirement benefit of a spouse who is a member of a pension scheme for payment, inter alia, to a dependent spouse or to a person for the benefit of a dependent member of the family.

Such an order would, for example, have the effect of preserving for a dependent spouse an interest in the member spouse's pension benefit and the proportion of the pension benefit which would be paid to the dependent spouse and other family member will be determined by the court. Subsection (3) has a similar effect to subsection (2) in so far as a contingent benefit under a scheme is concerned. A contingent benefit is a benefit payable under a pension scheme to a member spouse's dependants where the member dies before retirement.

Subsections (4) and (5) provide that, where a court makes a pension adjustment order under subsection (2), the spouse in whose favour the order is made may apply to the trustees of the pension scheme concerned to have the designated or earmarked portion of the benefit split from the main retirement benefit so as to provide a separate and independent benefit for that spouse.

The remaining subsections of section 16 deal with special circumstances where, for example, after a pension adjustment order is made by a court, a member spouse leaves a scheme or where a dependent spouse dies before pension benefits come into payment. It also deals with the provision of notification to various parties to proceedings and with various technical arrangements relating to the calculation and payment of pensions benefits.

The valuation and calculation of benefits and the manner in which benefits ordered by the court are to be applied and paid, will be in accordance with guidelines promulgated by means of regulations made under the Pensions Act, 1990. That is the approach which is provided for also in relation to corresponding guidelines for the purposes of the Family Law Act, 1995.

The question of what should happen to rights of succession following the grant of a decree of divorce is addressed in section 17 of the Bill. In the context of judicial separation, it is already possible for the court to make an order extinguishing rights that spouses have vis-a-vis each other. Where a couple divorce, the parties are no longer spouses and have no rights of succession. In compensation for that loss the court will be able to make provision for a spouse by using the various financial and property adjustment provisions in sections 12 to 16 of the Bill.

Where at or after the time of granting the decree of divorce, it is not possible to make adequate provision for a spouse, and that spouse has not married in the meantime, section 17 provides that the court may order that financial provision be made for him or her out of the deceased spouse's estate. In considering whether to make an order under this section, the court must have regard to any lump sum payments or property or pension adjustment orders made in favour of the applicant, or any devise or bequest made by the deceased spouse to the applicant spouse. The provision which the court can make under this section 17, together with any lump sum payments or property or pension adjustment orders already made, must not exceed in total the share, if any, of the applicant in the estate of the deceased spouse under the Succession Act, 1965, to which the applicant was entitled or would have been entitled if the marriage was not dissolved.

Section 18 provides that, where a court makes a secured periodic payments order, a lump sum order or a property adjustment order, it may, additionally, at any time thereafter make a further order for the sale of any property in which either spouse has a beneficial interest. The order for sale may include provisions in relation to the manner and time of sale and disposal of the proceeds of sale. The power to order the sale of property may not be exercised so as to interfere with a right to occupy the family home conferred by virtue of Part III of the Bill nor will the power apply in relation to the family home where either of the former spouses, following remarriage, lives with his or her current spouse.

Important criteria are contained in section 19 for the making of court orders under Part III in support of spouses and dependent children. The courts will have flexibility, on the basis of the circumstances of each case before it, to determine an equitable division of income and property. Subsection (1) sets down a general criterion that provision must be made for the spouse and any dependent member of the family as is proper having regard to all the circumstances of the case. Subsection (2) contains more specific criteria in relation to such matters as a spouse's income, earning capacity, property and other financial resources, likely future financial needs and obligations, age and conduct of the spouses and accommodation needs. The court must take into account any contribution made by either spouse to the financial and other resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family. Subsection (4) sets out specific criteria to which regard shall be had by a court in deciding whether to make an order in relation to children which take into account financial and accommodation needs and other matters.

Section 21 lists the orders under Part III which, on the application of either spouse, can be varied, discharged or suspended by the court taking into account any change in circumstances. Variation orders are also subject to the criteria for the making of orders which are set out in section 19.

Section 23 provides that in ordering maintenance under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Law Act, 1995, and under this Bill, a court may determine the method in which such payments will be made. This provision will give the court a degree of flexibility as to the form that the payment might take, whether by a direct debit or otherwise, and will further strengthen the powers of our courts to enforce maintenance payments.

Section 24 provides that where an appeal is brought from an order for payment of maintenance under the Bill, or any other legislation of the kind I have mentioned in relation to section 23, the operation of the order will not be stayed unless the court that made the order, or to which the appeal is brought, directs otherwise. This amendment will help to make clear the position that will in future operate in the event of an appeal from an order of maintenance and the balance of advantage will operate for the most part in favour of the dependent spouse and children.

The remaining section of importance in Part III is section 25 which provides for the situation where a couple seeking a divorce have already obtained a judicial separation. Orders in relation to the separation will be continued in force after the divorce unless the court orders otherwise.

Part IV of the Bill deals with the treatment of income and capital taxes of persons following a divorce and those provisions correspond with provisions already contained in the Family Law Act, 1995. Section 30 provides that payments of money made pursuant to an order under the provisions of the Bill shall be made without deduction of income tax. A pensions adjustment order does not come within the ambit of this section.

Section 31 provides that in certain circumstances couples who obtain a decree of divorce may, similar to separated couples, opt for joint assessment for income tax purposes. To avail of the provision, both of the parties to the dissolved marriage must be resident in the State for the relevant year of assessment and neither spouse must have remarried. The net effect of the section is that, through opting for joint assessment, where one party to a dissolved marriage is paying enforceable maintenance for the benefit of the other party, the party making the maintenance payment, and not the recipient, will bear any tax referable to the maintenance payments. If the recipient has no other income, the paying party will be granted the personal allowances and tax bands appropriate to a married person. If the recipient has other income, the tax assessed on the parties will be apportioned between them but the tax referable to the maintenance payments will still be borne by the payer.

Sections 32, 33, 34 and 35 of the Bill exempt property transfers between former spouses on foot of a court order governing a divorce settlement from capital gains tax, capital acquisitions tax, probate tax and stamp duty. In effect, any property transfers related to the divorce will be exempted from all capital taxes, provided that they are covered by a court order. However, in relation to any subsequent property transfers not consequent on the divorce, the divorced couple will be treated as strangers for capital gains tax, capital acquisitions tax, probate tax and stamp duty purposes.

Part V of the Bill deals with court jurisdiction and the power of the courts to seek social reports under arrangements with health boards and the probation and welfare service on issues affecting the welfare of parties to divorce proceedings, including children. As in the case of judicial separation, the Circuit Court will be the main court to deal with applications for divorce.

Section 44 to 50 contain minor amendments to legislation such as the Maintenance Act, 1994, the Family Law Act, 1995, and the Powers of Attorney Act, 1996, which are, in large measure, consequential on the introduction of divorce.

I have made clear to the House on a number of occasions that the position of children under our laws as they stand is of special importance and that constitutional and statutory provisions and administrative policies reflect that. Recent legislation reflects that policy. Each of the 18 Bills passed since 1986, to which I referred earlier, relate to children in one way or another. I do not imply that nothing more needs to be done. This Bill has strong protective and support measures in the interests of children based on experience of operation of existing laws. I assure the House that the extensive provisions which already exist in relation to children are continually being reviewed and will be updated as necessary under the Government's programme of renewal. As part of the legislative programme in hand in my Department, progress is being made on new measures to update the law on guardianship and on the evidence of children.

The introduction of divorce will place extra demands on our courts, on legal aid and on counselling and mediation services. Health boards and the probation and welfare service will be affected because of the requirement to provide social reports, if called upon to do so, by the courts in divorce proceedings. The House will be aware of the strategic plans being developed in recent years in each of these areas to meet the demands of the growing area of family law cases. Significant resources have and are being provided in all of the areas concerned. In so far as my own Department is concerned the record in relation to funding of legal aid, mediation and counselling should not leave any Member of the House in doubt about my commitment and that of the Government to those services. That commitment will extend to dealing, as necessary, with the demands of a divorce jurisdiction. I know that other Ministers with other responsibilities in the relevant Departments of Justice, Health and Social Welfare will continue to have the same commitment in relation to the various social services in support of families.

I look forward to debate on the Bill. I hope I have helped the House to put the Bill in context and to elucidate and inform it on the more important provisions. The provisions are not, for the most part, unfamiliar because they in substance correspond with provisions in the Family Law Act, 1995, which we discussed not so long ago. However, this Bill provides, for the exercise by our courts of jurisdiction to grant decrees of divorce. On its enactment, it will give effect to what the people enshrined in the Constitution, the right of persons in certain irreconcilable circumstances to have their marriage dissolved by our courts and to remarry, if they so wish.

I commend the Bill to the House.

Mrs. McGennis

Although the Minister is happy to lay the Bill before the House for debate, no-one will go so far as to say this is a great day for Ireland. It does not give any Government pleasure to introduce legislation for the dissolution of marriage. Marriage breakdown and second relationships are a reality both inside and outside the Houses of the Oireachtas and have always been a fact of life in Ireland. Everyone in this House knows cases where couples have not spoken to each other for 20 or 30 years and have been trapped in loveless marriages. There are also cases where women, because of a lack of financial support, have been trapped in violent and abusive marriages for their entire lives. This Bill changes the status of marriage in Ireland forever. History will judge whether this change has been for better or worse.

The core of the Bill is section 9 which states:

Where the court grants a decree of divorce, the marriage, the subject of the decree, is thereby dissolved and a party to that marriage may marry again.

All other provisions are designed to give effect to this in a just and equitable manner and to integrate this major new departure into our law. I believe the legislation generally achieves that purpose and I welcome it. Fianna Fáil will not oppose a Second Reading.

The purpose of the legislation is to give effect to the decision of the people who decided by referendum that this change should be allowed. I pay tribute to those who campaigned on both sides during that referendum: to Mags O'Brien and the Divorce Action Group, who, despite the setback in 1986, continued when it seemed there was no chance of success; to the group of volunteer workers who pressed on undaunted to make their case for the introduction of divorce in Ireland; to Des Hanafin and his supporters on the other side who were a lone voice in the recent past. I congratulate them for the effort they put into their campaign. Whether we agree or disagree with those who advocated or opposed divorce, no one suggests that either side did not campaign with passion and conviction. The result of the referendum was a close decision and we must be conscious as legislators that the measures we enact reflect the proposals put before the people in the referendum. This Bill generally fulfils that purpose.

Some sections require amendment and I am concerned that constructive amendments tabled in the Dáil by my party colleague, Deputy Woods, were not accepted by the Minister. I hope, having had time to reflect, he will be more amenable to the amendments I will table on Committee Stage.

Divorce and remarriage are difficult issues for Irish society. Nevertheless, we have decided in favour of the introduction of civil divorce. We have a strong family tradition on which we place great value, but the current rate of breakdown and separation, for which the Minister gave figures, has accelerated in Ireland. In 1994 an alarming one in six of new marriages broke down. The problem is accelerating. In the 1986 census it was revealed that 38,600 marriages had broken down. That is the last time we addressed this issue and decided not to introduce divorce. Surprisingly, by 1993, this figure had grown to 95,000. Many of those entitled to apply for a divorce when this Bill is law may not wish to do so. It was surprising to meet separated people who told us they would not vote for it. It is realistic to project that 10,000 to 15,000 of them will wish to obtain a divorce as soon as the possibility exists. This means the courts will be faced in the near future with up to 15,000 applications for divorce.

These will not be quick pro forma applications. The requirement in the constitutional amendment that the courts must be satisfied that:

such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family——

means that the courts must inquire into the circumstances of spouses to be satisfied that adequate provision has been made for dependants. Although the courts may have granted judicial separations, all cases must be re-examined in the light of present circumstances so the court may be satisfied that adequate provision has been made in compliance with the Constitution.

For those who obtained separation before the enactment of the Judicial Separation and Family Law Reform Act, 1989, this will be of great importance because the range of reliefs available then was considerably inferior to reliefs which became available under the Act and other legislation enacted since then. The courts presently deal with 2,000 applications for judicial separation per annum. As there will be a four year period from separation to the granting of divorce, it will be necessary for spouses whose marriages have broken down to continue to apply for reliefs under the Judicial Separation and Family Law Reform Act, 1989, such as maintenance, custody and access to children, barring orders, property adjustment orders and exclusive occupation of the family home orders. The likelihood is that the number of applications under the Judicial Separation and Family Law Reform Act, 1989, will continue at the present level at least.

There are now a significant number of people who wish to remarry. The key issue for society is how to respond to this demand from a growing number of citizens. There is also a demand from others for divorce so they can bring to an end an unhappy and acrimonious marriage and end a broken relationship. I favour allowing people trapped in a failed marriage the option of divorce so they may remarry and make a new life for themselves. I have made no secret of this fact, either publicly or within my party. I campaigned for divorce during the referendum, welcomed the result and congratulated the Minister. I campaigned in parts of Ireland where it was neither profitable nor popular to do so. I, like the Government, am in favour of marriage. It should be fostered and protected as an essential stabilising factor within society. Divorce should be a last option with a matrix of protections and supports before it can be exercised.

However, at the end of the day, a failed marriage is not a marriage and must be brought to an end. For this reason I welcome the provisions in section 5 dealing with separation and other matters on which the court must satisfy itself. A couple who has lived apart for four years in the previous five is not on the road to reconciliation. My preference and that of certain Members of the Government would have been for a lesser period. However, the period outlined in the Bill is closer to the views of those who supported the divorce choice in the referendum and is, therefore, the correct course to follow.

I still have doubts as to how the courts will define "living apart" and the possible subjective nature of the test which will be applied. Some precedents have already been set in this area in the context of judicial separation. We discussed this matter previously when the Family Law Bill was before the House. The Minister should take this opportunity to address this aspect of the legislation so his views will be on the official record.

Section 5 proposes that the court must be satisfied that there is no reasonable prospect of a reconciliation between spouses. This is an essential element of the legislation and is an act of faith with those who supported divorce in the referendum. Regrettably, the Bill is badly flawed in this area. Reconciliation is probably possible even in the most apparently intractable cases. In the vast majority of cases we are dealing with two people who courted and loved each other, lived a life together with the pressures and rewards that brings and who, in many cases, brought children into the world and shared the wonder and excitement of that unique experience. Now they find themselves apart. The differences and problems appear insurmountable, the way ahead unclear. It is possible that these people can be reconciled and that the happiness and stability of their marriage can be restored. However, it will not be restored by the measures the Minister has brought before the House.

They will not be reconciled by a solicitor acting under section 6 (2) of the Bill. This is paying lip service to reconciliation. It might be a breach of faith with the electorate and a nail in the coffin of future progressive social legislation. Reconciliation must be real and structured. It must recognise the human realities of this tragic issue. Under the Bill a solicitor is required to discuss reconciliation and provide a list of names of those qualified to help. This is far below what is required. To place the issue of reconciliation in the hands of the parties' solicitors who, with the best will in the world, will be part of an adversarial process is nonsensical.

Counselling must take place and must be carried out by professionals. The views of the counsellor must be available to the court to show that the breakdown is irreconciliable. One cannot force reconciliation or the reconciliation process on people. They have free will. However, a balance must be achieved. There is a duty on us to ensure that reconciliation is given a fair chance. The possibility of its success should be a matter for the couple and a professional in the field, not a solicitor. Any suggestion that what I propose necessitates an undesirable interference or intrusion is invalid. The provisions in sections 6 and 7 require steps to be followed with a solicitor rather than a professional in the area of reconciliation. This is not only illogical but unworkable and, ultimately, unfair to the parties involved in that it deprives them of a realistic opportunity for reconciliation.

The requirement on the solicitor to provide a list of names will be worthless unless there is some means of controlling what names are on the list. The responsibility must rest with the Minister who should put in place a comprehensive list of appropriately qualified counsellors. I am not suggesting that the Minister must vet these people and their qualifications. That can be done by the professional bodies concerned. However, the Minister must take responsibility for the list provided. I hope to move appropriate amendments to this section on Committee Stage. The Minister should pull back from these token measures and put in place a workable and responsive system for mediation and reconciliation.

I welcome the measures in the Bill which encourage mediation between the parties and the deed of agreement. However, I am concerned that once again the stimulus for this process is to come from a solicitor acting for one of the parties. This must be firmly rooted in the counselling process which I have already outlined. Anything which eases the pain and trauma of the divorce procedure is of value to the future happiness of all involved, particularly children.

There are procedures in section 8 for the court to adjourn the proceedings to enable attempts at reconciliation if the spouses both wish. However, in most cases, it will probably be too late then. The key is to encourage a proper atmosphere before the parties arrive in the court. Nonetheless, I welcome the provisions for an adjournment to allow the parties to agree terms. The court must adopt an informal approach as much as possible. It must also be proactive in encouraging agreement rather than having court decisions on all aspects of cases. This is difficult and time consuming but it is essential if we are to remain faithful to the decision of the people.

Sections 10 and 11 provide essential and practical protections for spouses where a divorce is being sought. I welcome them and commend the Minister on the direct approach he has taken. The orders provided for, which relate to maintenance, property, pensions, life assurance and the estate of a deceased spouse, are adequate and necessary. We had a long discussion on these issues when the Family Law Bill was before the House. They represent an equitable means of assessing and recognising the contribution of each party to the family's total possessions and assets.

The clear and unequivocal recognition of the rights of a non-wage earning spouse is essential and I welcome it. The protection of the new family home where a spouse remarries is also an essential and practical provision. All procedures should be framed in a way to actively encourage final agreed settlements. Many of the orders provide for parties returning to the court at any time thereafter. There might be a necessity to adjust orders and to recognise changing times and circumstances, but, if possible, means should be found to bring a final end to the marriage at the divorce hearing and to avoid return visits to court which will only prolong the painful adjustment process required. This factor is appropriate to the counselling and mediation stage.

Of all the issues which have been considered, the protection of children is the most important. It was not properly discussed during the referendum campaign. We must recognise, as we did during that campaign, the tragic facts associated with marriage breakdown, but the key issue must be what is best for the children. That issue was clouded during the debate. It should be central to a judge's deliberations and decisions about a marriage and it should be the basis of this legislation. What is best for children should probably influence much other legislation that comes before the House. The parties to the divorce frequently use children to advance their ends. It is a natural aspect of human behaviour although it should be discouraged. That is another reason much of the preparatory work should be done through counselling and a mediated agreement. Children should not be used in a court battle although it often happens in societies which have divorce.

I welcome the age limits of 18 years and 23 years and the broad definition of dependent member to include adopted children and children of either spouse where either spouse has been acting in loco parentis. Special provisions for mental and physical disability are also welcome and practical. The provisions for the material support of dependants are adequate and correct. However, it is likely that the emotional needs of children will be to the fore, particularly in the early years, and we must address those.

Custody will be a difficult and delicate matter for the court to decide on and it will be essential to have professional advice. Regardless of the findings on custody, access will be critical to the future well-being of the child. I do not know if the Minister was listening to a 'phone-in radio programme last night but a group of fathers were making the case for access and joint custody. This issue will probably be highlighted as soon as this Bill becomes law. For this reason, I will ask the Minister on Committee Stage to make provision for the court to consider allowing access to the children by the extended family of either spouse.

Grandparents are particularly close to their children in these cases and I am aware of tragic cases where both children and grandparents have suffered badly because access was refused. I am aware that the Minister had legal difficulties with this proposal on Committee Stage in the other House. However, I ask that he try to devise a suitable solution before the Bill leaves this House. In the past, the solution to marital problems and relationship difficulties was that children were placed with their grandparents and grew up believing them to be their parents, although knowing their own mother and father. There may be a fear that if we go too far in the other direction this key support for children of grandparents and extended family may be lost and thus cause much more damage to the children of a broken marriage.

We have debated the issue of family courts, and civil legal aid in this area, several times in this House. I do not know whether I detect a real commitment to the establishment of adequate family courts to deal with the cases which we know will arise under this legislation. When it is enacted and comes into law, parties who seek a divorce will have a right to have their case heard speedily and in a proper setting, sympathetic to the tragic nature of the circumstances. The Minister gave figures on the likely number of cases with which we will have to deal. The Law Reform Commission has reported on this issue and I call for a clear commitment on the funding, accommodation and support services required to make these courts a functioning reality.

I know the Minister agrees that it is vitally important that we prepare for the introduction of divorce, because he introduced legislation prior to the referendum. At present our legal system is creaking under the strain of the volume of family law cases in the courts. Despite the best efforts of judges, lawyers and court officials who work in family law, our system is under-researched with too few judges available to hear all the existing cases and two few court officials to handle the vast amount of paperwork. Consequently, waiting lists average 12 to 18 months and when a couple get to court, they are faced with facilities that vary from merely overcrowded to positively inadequate. Courthouses rarely have enough private consultation rooms or comfortable waiting rooms and very often during the winter there is no heat. We discussed this during debates on other legislation but Members can imagine what it must feel like trying to talk to one's lawyer about the custody of one's children in an open hall with dozens of other people around and one's estranged spouse watching from across the room.

The Minister agrees that people must be treated with dignity and respect by the legal system and we cannot tolerate chronic delays and poor facilities. The introduction of divorce will cause additional problems which will immediately swamp the family law system. In the medium term, we should bear in mind that even though a couple will only become eligible for divorce after four years' separation, they may well need access to the court during that time to sort out immediate issues of custody, access and maintenance.

Legally, marital breakdown will now become a two stage process which will represent a significant increase in the existing volume of work with which the courts have to deal. The recent Law Reform Commission report on family courts examined the process and procedures whereby family law disputes are resolved and remedies are obtained and considered the best type of judicial and court structures to deal with the different matters that fall under the general heading of family law. It set out ideals and objectives of a good family court system. Nobody would argue with them and we should certainly aim for them. They include ease of access and speed, the avoidance of conflict and hostility, support for family ties, the promotion of agreement and co-operation, respect for dignity and fundamental rights and the protection of children, addressing inequality, linkage with other family support services and cost effectiveness. These reforms are urgently needed.

The Bill provides the protection and safeguards which we in Fianna Fáil insisted on in the event of the people deciding to introduce divorce in the referendum. It is faithful to the draft Bill published before the referendum at our request. We appreciate the concerns of the substantial minority of the people who voted against the introduction of divorce and we have stressed our commitment to the family and to supporting all families in Ireland, socially, economically, financially and legally.

In the short time available I have set out some of the main issues. I will put down amendments on Committee Stage in a constructive attempt to improve the provisions of this Bill where possible.

The issues I mentioned in relation to the courts are vital and must be implemented to prevent a backlog of cases which will cause a loss of faith in the process at a time when it should be building public confidence. The last thing we and particularly those who actively campaigned for divorce need is to be held to ridicule and have it said that as long as one can afford to hire a solicitor one can avail of divorce but those who rely on civil legal aid will not be in a position for quite a long time to either divorce and end a broken marriage or to remarry and set up a new family.

We recognise that in providing a right to remarry, additional problems could arise by virtue of remarriage over and above those which arise at present from marital breakdown. We are already dealing with the disharmony and damage which results from breakdown and separation. We must address in a calm, considerate, caring and practical way the extra difficulties which can occur as a result of remarriage. Most of the problems have been experienced already in the context of legal separation and second relationships. The extra challenge will focus our minds and actions on the supportive work in which we should have already been engaged in tackling the problems of marital breakdown.

I support the Bill and commend it to the House. I look forward to tabling amendments on Committee Stage.

Mr. Neville

I agree with Senator McGennis that the day we introduce divorce is not a great day for Ireland but a realistic one. It is a necessary change in our legal system to respond to a situation that has developed in society over the past three years. The introduction of the Bill is the end of a long road which will facilitate people who have had the very sad experience of a complete breakdown of their marriages. It will facilitate those who have marriages in name only, whose marriages have ended and do not exist except in the eyes of the State.

The Bill establishes a civil right for these people to remarry — it recognises reality. This has been apparent for many years. We are concerned about the welfare of thousands of citizens whose lives have been traumatised by their marriages. We appreciate the concerns of the substantial minority of the people who voted against the referendum on divorce. It is incumbent on us to reiterate the commitments and guarantees given during the referendum debate to supporting all families in Ireland, socially, economically, financially and legally.

There will be no easy or quick divorces. The Bill provides for divorce only where marriages are irretrievably finished. This reassurance is now written into the Constitution. We must continue and strengthen the State's support for the family.

I do not welcome or agree with divorce. However, it is my duty to recognise the reality of Irish society at the end of the 20th century. Society and the State must address the problem of marriage breakdown through the legal system in a detailed and compassionate way. The Bill is the culmination of almost ten years' work in the family law area.

I compliment the Minister on his work in this area since he took office, both in this and the previous Government. He has almost had a mission to ensure this area is dealt with adequately in the context of modern society and the difficulties which have arisen, especially for women, over the past 25 years. The legislation which he and previous Ministers introduced was designed to respond to unprecedented changes in society over the past 20 years.

This Bill will give the courts the necessary power to settle disputes in the complex area of family law and it will enable them to make various orders in support of spouses and dependent children following the granting of a decree of divorce. This may relate to maintenance, lump sums, property, occupational pensions and so on.

I welcome sections 5 and 6 which contain safeguards designed to ensure the parties to a divorce are fully aware of the alternatives to such proceedings, including the availability of mediation, separation or a divorce on the basis agreed by both parties. The safeguards are designed to ensure attempts at reconciliation. I welcome the fact that the legal advisers of both parties will have an obligation in law to ensure the provisions of these sections are complied with and will have to provide a certificate to the court to that effect at the time the divorce proceedings are instituted. The court is empowered to adjourn proceedings either to assist reconciliation or to facilitate both spouses in reaching agreement over some or all of the terms of the divorce settlement.

I agree it is essential to have a skilled professional counselling service throughout the country, not only in the area of marriage counselling but in many areas of personal difficulties. It is necessary to have health board involvement to complement the voluntary bodies. I am often surprised and appalled at the health boards' lack of facilities for proper counselling and not only in the area of family law but other areas also. Most health boards have very sophisticated services in other areas but not enough attention has been paid or resources given to counselling. The need for such services in modern society has not been fully recognised.

I had a case recently outside my health board area where a person whose marriage had broken down and whose children were with her husband — I will not go into the details of her extreme difficulties -attempted to commit suicide by taking an overdose of tablets. She was released from hospital four hours after treatment without receiving any counselling. I support the previous speaker's call for the health boards and the State to recognise the urgent need for professional counselling in the areas of family law, marital and other personal difficulties and traumas people experience in modern life.

There have been many good developments over the past 50 years in terms of the standard of living but there have also been many bad developments to which we, as a society, have not responded and of which we should be more aware. It is regrettable that the level of marriage breakdown has escalated over the last ten years but we must recognise it is a fact of life. Everything possible must be done to support marriages and assist those in difficulties. We must not sit in judgment on those whose marriages have broken down but we must try to ease the pain and make children the centre of our approach. We must deal with such traumatic life problems in a very caring and compassionate way.

We must be clear about what this Bill proposes, which is that where a marriage has broken down for a period of four years the parties have a right to remarry. That right is the most important issue with which the Bill deals. Other areas of marriage breakdown have been covered by legislation on judicial separation. It will only be possible to obtain a divorce if the parties have lived apart for four of the preceding five years and there is no reasonable prospect of reconciliation. Before granting a divorce the court must be satisfied that provision has been made for the spouses and children. The Bill is concerned with the right to remarry if a marriage has irretrievably broken down and the spouses have been effectively separated for a long period of time.

It is cruel and unjust to permit people to separate but to deny them the opportunity to remarry. Thousands of people in Ireland have been separated from their spouses for many years. We know people who have been separated for many years and have entered into second unions, very often with children. Under the present law, but not under the Constitution, these people are denied the right to remarry although they have been living together as man and wife for many years. The introduction of this Bill is simply a recognition of the current social reality. A divorced spouse will have the same financial and property protection as a spouse with a judicial separation.

The Bill is being introduced against a background where 75,000 marriages have ended; 2,300 people are dependent on deserted wife's benefit or single person's allowance; the incidence of domestic violence is increasing at an alarming rate; the number of children born outside marriage is increasing rapidly and the number of couples cohabiting outside of marriage is increasing. These are the distressing and distasteful facts. We do not have a perfect society; if we had there would be no need for judicial separation or divorce.

Divorce is not a welcome development but a necessary regulatory one. We must deal with the realities of life and not what we wish society to be. One of the realities is that people whose marriages have ended wish to remarry. Can we deny them a second chance? In many cases they are living the essence of a marriage but their union does not have a legal status. Ignoring these relationships does not mean they will go away. Those who have the blessing of a happy marriage cannot fully understand the sense of disappointment, hurt and failure of those whose marriages fail. If a couple is incompatible it does not mean the individuals might not be compatible with others. Where there is intolerable physical or psychological violence against one of the spouses it does not mean the suffering partner cannot find happiness elsewhere.

We are being realistic and compassionate. We are responding to the will of the people who voted for divorce in the referendum. We are also responding to the many people who are extremely concerned about the introduction of divorce, how this legislation is framed and the checks and balances the Minister has introduced in a very detailed and comprehensive Bill. I congratulate the Minister on his work in this area.

Professor Lee

Cuirfidh sé áthas i gcroí an Aire nach labharfaidh mé ach ar feadh cúpla nóiméad. Senator McGennis said history will judge whether the change is for better or for worse. I have gone on record on what I expect and it is not what the Minister expects. If either of us survives that long we will see what the long-term consequences will be. I think it will be for better and for worse.

My judgment at the time was that the balance of the particular no-fault proposal that the people accepted would be for worse but a different decision has been taken and the legislation before us is in accordance with that. It is substantively very fair legislation in the light of what was previously promised. Nobody can now challenge it in principle in the light of the decision of the people.

I am very sceptical of arguments based on what we must do in the face of reality because it is, of course, reality that marriages break down. It is reality that horrible experiences can occur within marriages but the way we respond to reality depends on our value system. There are all sorts of realities that are changing all the time. Crime is a reality; so are drugs. Some people respond to drugs on the basis that we should recognise the reality and legalise a large proportion of them. Arguing from reality is pushing us one step further back to say "What values do we bring to assessing the implications of reality? Is it positive or negative or where does the balance lie?" While I recognise the problems that are there — as anyone who is not wilfully blind will recognise — and the solutions that are to be found, that does not mean that one concedes to whatever direction reality is going. Otherwise we are in for a very grim 21st century in some respects.

Senator McGennis laid a lot of emphasis on trying to amend the proposals regarding the mediation service but I am less optimistic than she about what the mediation services will deliver, not because I do not wish they could deliver everything one could hope for but, on this I will be fair to the Minister, because my recollection of the literature on mediation a year ago was that it made little difference to the vast majority of cases where it was attempted under the current legislation. I may be wrong on that and I hope I am. It is not an argument against attempting the best possible mediation service but it would be an argument against placing too much hope on what can emerge from it. I will be supporting amendments intended to improve the arrangements and resources available for mediation along the general line of what Senator McGennis said.

Another crucial point Senator McGennis made is also crucial to the Minister and to all of us. It is the question of children and it was argued extensively in the earlier discussion. Glancing through the record, I was reminded that I was most remiss in not thanking the Minister for his generosity in sending me a document this time last year. It was in the light of my having said — and it is always cathartic to return to what one said — that I found it difficult to find adequate literature here on the impact of breakdown, divorce and remarriage on children. I said it was difficult to find firm conclusions about virtually anything. The Minister took up the point in his response when I left and made perfectly legitimate points in the context. I am not bothered about those points but I am worried about the substantive issue. I hope there has been some modification in the Minister's views or that those views were more modulated than it appeared but the Minister kindly pointed out that if I had read the literature I would know the answer and he said he would send it on to me, which he did.

The Minister went on to say that there was very extensive literature and that there was no evidence that divorce per se had an adverse impact on children. He went on to posit the extreme case of violence in the family, the horrors of watching, the impact of the breakdown on the child's psychology, and asked if divorce was not an escape from an intolerable situation and an improvement on watching that violence. Of course I would accept that but the majority of divorce cases do not arise internationally, and will not arise in this country, from violence. There is and will be violence but the majority of breakdowns do not occur through violence. We are not talking of that specific situation and when we legislate we cannot do so on the basis of possible extremes, however horrific those extremes.

The paper the Minister sent me was Dr. Sheila Greene's article, "Marital Breakdown and Divorce: The psychological consequences for adults and their children" and it did not answer my concerns as much as the Minister or I hoped because I quoted from that article in my own speech at column 1544 of the Official Report. I am familiar with the argument presented there. Dr. Greene is a passionate advocate of divorce but her article is a very fair and balanced one. It does not allow as optimistic a conclusion as one might, in the heat of pre-referendum debate, like to draw from it. I will not regurgitate what I said but I will quote one further sentence. "Distress may have been evident in the child before the intention to divorce was made known to them, as they reacted to the problems in the marriage or to parental unhappiness we all know that can happen] but in many cases the child might have been quite unaware of the existence of any threat to his or her family. The actual level of distress and disturbance found in children of intact families varies." It obviously does.

Despite the issues a year ago, we are still far less certain of the consequences for children than at that stage. Maybe we felt obliged to insist, in that light, on the mediation service and anything that can possibly be done to ameliorate the impact on children and that may not fully reveal itself until they are well into adulthood; it could be 20 years afterward before the psychological consequences become fully apparent. None of us knows the right answer except on the basis of common human observation. We must assume there will be severe problems to be resolved even where it can be an escape. We must do everything we can.

I will support every amendment in that direction and put some down myself to try to achieve a slightly better outcome than the one the Bill contains, while accepting the general thrust of the legislation.

Ms Gallagher

This legislation has been a long time coming. After protracted debate, misinformation from certain sources, scare mongering from others, more debate and two referenda the matter was eventually determined by the people. However, I continue to receive unsigned letters, including ones from the USA and elsewhere, demanding that the institution of marriage be preserved at all costs. Selective quotations from the Bible are used to support this argument.

These people refuse to accept democracy in action in its purest sense in the form of a referendum. They continue to believe they have a right to force their personal opinions into unchanging State law. They refuse to accept the other Christian values of tolerance, forgiveness and helpfulness. They also refuse to accept that their religious beliefs should not take precedence over those of others and continue to strive to maintain a Church State. Who do they think they are?

These same people often have no difficulty in evading their tax. They certainly have no difficulty in frowning on unmarried mothers. They are selective moralists. It is time they were told they have no right to run this country from their cosy armchairs.

I believe in the sanctity of marriage. Stable marriages are good for all involved and for society in general. Too many people take their relationships, responsibilities in marriage and the institution of marriage too lightly. In a time when television portrays infidelity in a glamorous and acceptable fashion, when the news carries stories of the marital problems of famous couples, the pressure on marriage is enormous.

A society which accepts and almost admires those married individuals who feel they have the right to have so-called "harmless flings" as well as serious affairs can expect no benefits for itself in return. However, we should not be hypocritical. Nothing is for life any more, neither houses nor jobs. In addition, priests can renege on their vows and leave the priesthood. Given this, how can such people and society in general tell those in unhappy marriages that they have made their bed and must lie in it?

I grew up in a happy, stable environment with parents who loved me and each other. I remember the times my Dad would hug my mother, who always seemed to at the kitchen sink, and the times they kissed and talked together in a happy way. I am glad to have had such happy experiences but, unfortunately, it is not the experience of many thousands in this country.

A young 13 year old girl who had just started secondary school came to my solicitor's office in an awful state. She told me of her constant efforts to get her Mum home out of the pub and also how she would break up the rows between her parents. She pleaded that they would agree to separate. She wanted her father to take care of them so that they could get on with their lives. She was fed up with the rows, the drink and the violence.

I spoke to a sincere woman who was deserted by her husband 14 years ago and left to bring up their children alone. He, a soldier, had been living a double life, that of a married man at home and of a bachelor while in Dublin until he decided that he preferred being Romeo and never came home. It was our moralistic society that, 14 years ago, viewed this poor woman as less than respectable because of her deserted status. She was blamed for not being able to keep her man and was lumbered into the category of single parents of so called dubious moral values. How unfair this was and that attitude still continues.

This legislation is for that woman as much as anybody else. She has been in a horrible limbo for more than 14 years, neither married or single and always seeking to finally resolve the matter. She is not in another relationship as she does not want one. However, she wants a divorce so that those in her community can see her as a free individual again, not as an appendage. She wants to close that chapter in her life.

I believe that women, more than men, need to tidy up their affairs. Men are better at walking off, moving in with the new woman, changing tack and going on as if nothing happened. Women feel a greater need to resolve matters. They need to determine their status, and finalise property and financial matters before they can go on with their lives. Otherwise they feel they are "on hold" in some way.

Legislation such as this is vital. It gives people who have been unhappy for many years with their marital partner the right to say good bye and start again. It is no more than a tolerant and forgiving society should provide.

However, we do not provide enough support to existing marriages. I am aware that the Minister has drastically increased the funding available to counselling services and others involved in support services, but the problem should be addressed sooner than that. It is a difficult area. Perhaps it needs to start in terms of education or civil responsibility. Many people marry seeing only a rose garden ahead of them and the love and attention they presently get from their partner. They do not expect the inevitable decline in overt romance when marriages bring forth children, mortgages and problems. These take over and sometimes communications between spouses boils down to mundane questions such as who will collect the children from school or as to what was on "Coronation Street". This distances spouses to such an extent that it takes little to break the bond altogether.

Support services, such as counselling, should be free and more widely available as should advice on financial matters which often create big difficulties within a marriage. The Department of Social Welfare now provides a good service in this respect, but it needs to be better publicised. In addition, other services such as those dealing with alcoholism, problem children, etc., need support because, in the long run, it is these problems which break marriages. All services need to be provided not just in the big towns and cities but in smaller towns and villages where people require and deserve them. Mediation services should be more widely available. This matter was debated earlier.

People often separate in hurtful circumstances. Often the best opportunity for revenge arises when a spouse seeks to deny access to the children who are then used as pawns in the separation and subsequent proceedings and also in terms of maintenance where a spouse can refuse to give money because the other spouse is being awkward. The adversarial system does not help those who are splitting up. For those who realise their marriage is over, it is much better to try to split up in as amicable a fashion as possible. This is where the mediation services are vital. They are not widely available. For example, people in my area of Counties Cavan and Monaghan do not know about them and those who do find it difficult to travel to where they are available and pay for them.

Mediation services should be linked into the civil legal aid offices and provided as part of a nation-wide service. This would save the State money in the long run. If it is prepared to pay the legal costs of cumbersome court proceedings it should also be prepared to fund mediation services that would lessen such costs. This is the best way in the long run to resolve difficult family disputes. We must address problems in as humane a fashion as possible. Mediation is a vital component in this.

When marriages break down to the extent that they are over in all but name. It is sad for all involved. It is never easy to finally end them, but those who have suffered torment and hurt must be given a chance to move on in their lives. The issue of divorce is complicated. It is often easier to decide to split because there are not so many things to fight over. However, for those with money, the daggers are drawn in separation proceedings — presumably this will happen in divorce proceedings also — and there are arguments over pension rights, insurance, etc.

The same is true if a lot of property is involved. Arguments about over and under-valuation and about who should have what become more than bitter. That will always happen when there is something to be fought over. My experience is that those with few assets or finances can agree to separate much more easily than those who have a great deal, who determine to fight over their money. Sadly there is often more fighting over a field than over the children — custody and access arrangements can be agreed but one spouse will not hand over any land. It is a sad reflection on human faults and failings and it cannot be resolved easily.

This legislation attempts to deal with the problem as best it can. Prior to this the Minister sought to introduce, in a comprehensive fashion, legislation to facilitate access to information about one's partner's assets, the splitting of pensions and many other issues, each of which posed serious problems for those trying to agree a fair separation. That will help along the divorce proceedings which we hope to introduce shortly. It will not be easy but in so far as legislation can determine what people do, it has provided for it as fairly as possible.

Another issue arises from existing separation deeds and agreements. If they were agreed ten years ago, will this legislation allow them to be reopened, reargued and revamped? That may cause hurt to people who have already been through the process but, on the other hand, it may benefit those who separated without knowing the full information about their rights or the assets of the other partner. How does the Bill propose to deal with this? In England, divorce agreements can be reviewed on a two-yearly basis with regard to assets, etc., which prevents one spouse transferring property out of his or her name prior to divorce proceedings and putting it back under his or her name afterwards. How do we provide for both the finality of divorce, for which we are aiming, and the fairness and balance needed to provide on an ongoing basis for the dependent spouse and children? I would welcome clarification of that issue.

Legislators must provide what we can to facilitate people to leave an impossible situation in which no one gains. It is not good enough to brush the matter under the carpet and pretend it does not exist or did not happen in the good old days. I disagree with Senator Lee's suggestion that the right to move on is over-estimated. In a humane society we must face the reality of broken marriages and none of us has the right to tell people that they made their bed and so must lie in it. People have a right to start again; it must be controlled and curtailed and we must accept the importance of marriage as an institution. Be that as it may, we must deal with the problems we face. This is a right which must be there for those who wish to avail of it.

Mr. Farrell

I am a democrat and I accept the wishes of the majority. However, I do not believe in divorce and I do not know whether we have done enough research on why marriages fail. By and large, they fail because of unfaithfulness and lack of responsibility. Many people who leave marriages say they were in a bad situation and thought leaving their spouse would improve it, but that is to jump out of the frying pan into the fire. This is the type of issue we must examine.

Over the last 25 years, Governments have spent billions of pounds providing better education, health and social services. However, there are still 100,000 people who are illiterate; this is a sad return on the money spent on education. There are many thousands of sick people in the country; 25 years ago there would be one or two patients in a doctor's dispensary but now there is not just one doctor in an area, there is a practice of three or four doctors, with a queue of patients. Every hospital has a waiting list, although we have built bigger and better hospitals. With the best will in the world, we are not solving the problems.

When cracks appeared in marriage and society, we put in place systems and social workers who were supposed to help families solve their problems. However, they did not do so, because love, honour, respect and commitment no longer count for anything. Those of us from the older generation took pride in the fact that our word was our bond. If we said we would do something, it was done come hell or high water. Today, people say they will do something but they take no heed; a week later when they are asked whether they have done it, they say they forgot. They will not even say they were not able to do it. This is an example of a lack of commitment at a simple level.

No amount of analysis or legal systems can evade moral obligations to the family. We were told that if we had a proper birth control policy there would be no unwanted pregnancies. We have introduced condoms and many other devices but we have more unwanted pregnancies than ever.

Mr. Neville

We do not, those pregnancies are wanted.

Mr. Farrell

We are trying to solve moral and personal problems with legal systems but no such system can solve them. We could take a lot of pressure off married families. I was married for 33 years to one spouse until cancer ended my marriage. When I first married a man congratulated me and gave me one piece of advice — never to go to sleep without settling a row, shaking hands and giving a good night kiss. Married people should follow that policy, simple though it may be. A man once said that everyone looks for perfection. It is simple to say "I am sorry" but it takes a big person to say "forget it". This is an old saying but true — when two fight, both are wrong. There should be a greater awareness and realisation on the part of people making commitments of all descriptions.

The Government should re-establish the house grant scheme which was abolished because the country could not afford it but the result has cost newly married couples building homes a fortune. I started to build a house in 1950 and finished it in 1954. I received more than 50 per cent of the cost in grants. I built much of the house myself which cost £1,000 and I got £560 in grants. My home cost £440. It was a good two storey building with hot and cold running water, a septic tank and a bathroom. In those days that was a luxury. If somebody got a contractor to build the house at that time, it only cost £1,500 and he received a third of the price in grants.

Houses today cost over £40,000 but people only receive £3,000. Resources are no longer given to families which need them. People are faced with a large mortgage from the start and large mortgages are dangerous. A colleague of mine who is an auctioneer was asked recently about the main source of property in Britain. He said they referred to the three Ds — death, debt and divorce. These three Ds will undoubtedly be the source of houses on the market in Ireland soon.

Many people say that much of the legislation relating to the family which has been enacted is unfair and militates against the male spouse. The female spouse gets everything while the male spouse must say goodbye and go, leaving everything behind him. This is a sad reality. Where will it end? There is much talk about nuclear families but I do not understand the term. I asked an educated person what it meant and they said it was the modern age family. However, irrespective of what it means. few people talk about the traditional Irish families in which I, Senator Gallagher, Senator Neville and others grew up. We knew nothing about nuclear families; the only nuclear thing I knew about was the bomb. The new "in" phrase is the "nuclear family", but I do not understand the term. Perhaps the Minister could explain it. One of the benefits of education is that people use fancy words. On television recently I heard a window cleaner call himself a glass hygienist. Education is wonderful.

Mrs. McGennis

Does he get more money?

Mr. Farrell

The way people play with words nowadays is wonderful. However, we should get back to basics.

As Senator Gallagher said, even priests and bishops are not keeping their commitments. Why cannot people honour their commitments? The basic rule of life is that one should honour one's commitments. Everything started to deteriorate when people threw out the 70 words in ten short sentences. The fourth sentence is that one should love, honour and obey one's parents and superiors but people have ceased to obey or respect anybody. For example, boys walk up to their schoolmasters and call them by their first names. People do not tip their hats or show respect to the clergy when they meet them; politicians and gardaí are not respected. It is sad because people start to throw their hats at authority.

However, freedom brings responsibility. We are living in an á la carte society where people pick what suits them and ignore what they do not like. However, what people do not like is also part of the menu and the survival plan and must be obeyed.

The system should protect families and more research should be carried out on family breakdown. No real research has been undertaken on this aspect. It is too easy to make glib statements that somebody was unfaithful, that a man was a romeo or a woman was fond of the good life. Why did they behave in that manner? What motivated them? What was the catalyst? If two people were courting, had a good relationship for two or three years and got married, there was no reason for them to behave in that way unless unforeseen pressures were exerted.

The biggest pressure on young married couples is trying to pay the mortgage. They must both work, not because they love their jobs but the bills must be paid. It puts a strain on a marriage when two people are working long hours and overtime to meet the bills and pay the mortgage. The system should ensure that families who want to build houses are given more assistance. Billions of pounds can be spent on the legal system. For example, there was a case last week where a women received £170,000 but the lawyers received £800,000 in fees. We say house grants cannot be paid and we cannot help people, but from where does that type of money come?

We should develop an infrastructure rather than throw away so many social services; we are always reactive. The Bill is a reaction to a problem, but its cause has not been researched. We do not examine why problems exist or worry about them. It is like listening to children crying. We do not ask why they are crying but give them a sweet or money to go to the shop. People want easy answers and instant solutions.

One of the biggest problems is the abuse of alcohol which may lead to an abuse of drugs. Many young people have told me they are amazed more people are not on drugs because it is cheaper nowadays to get a buzz from drugs. If one spends £10, one will get enough drugs to ensure one has a buzz for the night but one may not get the same effect from spending £20 on drink in a pub. Why do people need this artificial buzz? What has gone wrong with society that people cannot go out and enjoy themselves without a tablet, liquid or some type of stimulant?

Young people are no longer committed to living. That is why we have so many suicides. They are looking for the out option because they got bad results or something went wrong and take an overdose to escape. Why do they want to get out? Because our moral values are gone. We are like atheists. Where the tree falls there it lies. That seems to be our policy. However I do not believe that is true. I believe in a life hereafter and that there are moral obligations which we are not fulfilling. It is too easy to bale out. The Minister is doing his best and I congratulate him on trying to solve a difficult problem. However, no amount of laws or legal systems will solve these problems.

We introduced laws to prevent drug abuse but the problem is worse than ever. The day we started talking about big schools, amalgamation, rationalisation and conglomeration was the day we destroyed society. We did this in the interests of economics; we were told it would be cheaper. However, while it was cheaper on paper what has it cost us in the number of jobs lost? What has it cost society? Do we look at this cost? When we listen to economists do we think of the costs on the other side?

When we had small, two-teacher schools — even in the town of Sligo where there were seven or eight of them — we knew where the sweet shop was and we knew the people on the street. No one knows this better than Senators. If you stop in a town today and ask a young person directions to the next town, they will not be able to help. The same applies if you ask them where so and so lives. It is like the Yank driving through Connemara who met a wedding. He asked someone "who is getting married?.""Níl a fhios agam," was the answer. When he was coming back he met a funeral. He asked "who is getting buried?""Níl a fhios agam" was the reply. "He did not last long in married life," said the Yank.

We are getting to that stage now. Nobody knows anyone else. When you break down this social cohesion where we are all hiding under the veil of not knowing anything or anybody, you breed a very dangerous society. Society should be about people talking to and knowing each other; it is about being part of a community. Community is a thing of the past. In traditional Ireland if you were short of a drop of milk you went to the house next door. You cannot do that now. All this has played a part in breaking down the moral fabric of society. This has happened because we were told that big schools would give better education. This has been proved to be false. That is why we have 100,000 people who are illiterate. These statistics were quoted in the daily papers. You cannot adopt the á la carte attitude and believe the statistics that suit you. The harsh reality can be read in the statistics.

The medical situation is similar. If we get a packet of pills we think they will cure us when what we really needed was someone to take time to talk to us the way doctors used to do. In this educated age conversation is a thing of the past. This lack of communication is leading to marriage breakdown. At times the problem may be that there is plenty of communication followed by a deafening silence. No Bills or laws will cure that. We must return society to what it was and stop talking about economics because economics have caused the drug problem. Young people are idle and think they have no future. People in jobs no longer have security. A county manager recently told me he believed his job was no longer secure. When I started working with Sligo County Council I knew I could get married, take out a mortgage and honour this commitment. There is no longer security or continuity of employment. We see people as part of a machine and when we modernise that machine, we cut out the parts we no longer need. We cannot keep doing this. The price we are paying is a society running wild.

People will argue that there have always been broken marriages. They also say old people were mugged, and there was always a drug problem, etc., but this is not true. We had a society where you could walk the road in safety at night; you could come to this city, park your car and walk around and when you returned your old Ford Prefect would be where you left it. We have bred a society which has no respect for anything. Respect, love, honour and commitment are things of the past and until we rediscover these values we will never return society to the condition it was in in my day.

I have seen a lot of chat shows on American and British television. The sad reality is that marital breakdown has caused more problems than it solved. With the best laws and rules in the world nothing can take the place of a home and a father and mother. No foster care, home help or community care can replace the daddy and mammy in the home. We may live in a country which has some of the finest houses in the world but we have very bad homes. When I was a boy we had very bad houses but excellent homes.

Another contributory factor is the distances people have to travel to work. Rural Ireland is devastated. You can travel for miles and all you will see are derelict houses where happy families once lived. We over-concentrated all our resources on Dublin. The result is a city which is practically impossible to live in. At the same time the west, with the exception of Galway, is denuded. It is the same in north and south Sligo, Cavan and Leitrim. Why do we not have a system where the country's wealth could be distributed? The late Deputy Neil Blaney thought he would solve that problem when he introduced regional water schemes. An earlier Government introduced electricity to rural areas. This was done to provide rural areas with an infrastructure which would encourage people to remain in such areas. It worked until the economists decided to close two teacher schools and Garda stations. The end result was a short-term saving. What has this cost?

At present teachers do not know most of their pupils and vice versa. People do not know the gardaí in their area nor do the gardaí know them. As a result, people have no respect for them and do not help them. The attitude is that they are getting well paid so let them get on with the job. This is the society which we have built over the past 25 years. We have seen different legal systems introduced, Acts passed and different Ministers appointed. We are just tinkering with the problem.

We have developed a society which has no respect for anything. Everything is based on rights. We usually hear people say that something is their right. I remember almost 30 years ago when I entered politics as a county councillor people would come to me to ask me to do something for them. They might have been looking for a house grant or a council house. Today people come to me when they are refused something and they say they have a right to it. Everybody is talking about rights. This Bill is about the right to dishonour a commitment given on the pretence that a person did not know what they were doing. There is an old saying that ignorance of the law excuses no man, yet people are trying to renege on commitments. The excuse given by people is that something was not explained to them or if it was, it was not explained properly.

We must look at the cause of the problem, not react to it. If a crowd gathers on the street waving banners, Governments, including my own party, react. That is the problem with Northern Ireland; we are reacting to it without trying to identify the cause of the problem.

I would like the Minister to devise a system under which we could research the reason marriages break down. I have read about cases where people who lived together for seven to ten years broke up after they married. Why does that break? Is it because one partner had a lot of money and the other wanted a good bargain?

If people make a commitment, they should keep it. We should try bring back the concepts of love, honour and obedience. We should break down the conglomerations, forget about economics and try to get people back to rural areas. If we returned to the type of society we had 30 years ago, we would have a good country.

Dr. Henry

It is always a great privilege to follow Senator Farrell but it is also a tremendous challenge because his oratory is unmatchable. I agree with much of what he said. The Senator spoke about commitment, but the only time I have heard it spoken about recently is in the case of footballers and whether they are 100 per cent committed. I have not heard it alluded to in any other section of society.

The Minister is to be applauded for this legislation not only because it is introduced in a climate where so many marriages are breaking down that the possibility of allowing people to remarry has to be recognised but because it is part of a raft of legislation which is not for those of us who do not want a divorce. The supporting legislation which has been introduced is much more important and I suggest that there are other areas we need to address.

This debate has been interesting in that everyone has focused on the need to support the social fabric of society as much as possible. Every speaker gave marriage an important place in the social strata and milieu we want to develop so there is a sense of stability. Senator Farrell made an important point in that there has been a great divergence between economic and social progress. Perhaps in the past few decades we have focused too much on the need for economic progress without at the same time ensuring that social progress kept pace. This is not a specifically Irish problem but an international one. I suppose we could blame everything from CAP, which instead of preserving rural Ireland has succeeded in denuding it, to the International Monetary Fund, which is taking over the developing world, to the World Bank which finished its destruction, to the multinationals which have taken over our lives but whom we welcome with open arms daily. Unless we concentrate on social progress at the same time as economic progress, we will have considerable troubles.

Before I finish applauding Senator Farrell, I heard him mention obedience——

Mrs. McGennis

It struck a chord.

Dr. Henry

——which we will discuss as part of a philosophical debate at a later time.

It is interesting that this debate has been quite philosophical rather than just concentrating on the nuts and bolts of the legislation. It is constantly pointed out that about 70 per cent of divorces are sought by women and that they are less likely to remarry. It could be that men are more enthusiastic about second marriages, it being the triumph of hope over experience, and that women are more careful about getting into such a state again.

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

Dr. Henry

This is an important Bill. We should address the deficiencies in the social fabric which have been pointed out by other Senators. For example, when the Domestic Violence Bill was enacted before the summer recess, I put forward the suggestion that we should try to introduce a domestic violence liaison scheme similar to the Garda juvenile liaison scheme. I have been in contact with the Garda about this and it is supportive of such an idea. The earlier domestic violence can be brought to a stop, the more likely an amicable solution to the problem becomes. We should look at this rather than having the courts constantly involved in such cases.

Alcoholism and drug abuse play an extraordinarily important part in marriage breakdown and we need to address these issues more thoughtfully than we do at present. The issue of child abuse in homes must be addressed. Incest is obviously a very serious problem in Ireland and a substantial number of marriages have broken down when women found they could not tolerate it and left home with their children.

It is very important to examine the reasons children flee their homes. According to Focus Point, the majority of children who flee and are homeless have been abused within the home. In the past we constantly returned these children to their homes but that does not happen anymore. We try to address what may be the child's problem but more work and effort must be put into this area.

Senator Farrell spoke of adults' rights and obligations within relationships. That is so but it is important that this Bill stresses not only the rights but also the obligations of adults to their children, and I welcome that.

One of the most important areas in the breakdown of marriage, which society badly needs to address is the very serious effect of unemployment. It is fine to take unemployment as an economic problem but this needs to be brought into the social domain. Instead of focusing solely on economic issues when we address unemployment, we should focus on the social problems which arise from it.

Mr. Manning

I commend the Minister on the work he has been doing since he was appointed Minister for Equality and Law Reform. The fact that his Department does not have line responsibilities but is, by its very nature and essence, a reforming one is a valuable lesson to future Governments. There is value in having a Department which is not distracted by questions of administration but is able to take specific issues on board and work at them to ensure there is a steady stream of reforming legislation. We, in this House, have had plenty of experience of the Minister over the past number of years because he has probably been the most frequent visitor here and I compliment him on the volume and quality of legislation he has introduced and the utter dedication and care with which he attends to it. He has always taken the Bills himself and has been prepared to listen when suggestions and proposals for improvement are being made.

The second reason I welcome this Bill is I can speak from a depth of personal experience on the subject. From the outset, at the time of the earlier referendum in 1986 and long before, I have been a very strong supporter of the case for the abolition of the absolute ban on divorce and remarriage in the Constitution. It was a mistake to include it in 1937; it should never have been different from ordinary statute law which could be changed in Parliament as public opinion is reflected there. However, it was part of the Constitution and the fact that the people have been consulted twice and have finally give a verdict at least is a landmark.

Although I do not want to dwell on this, I can speak from personal experience as one of the few Members of either House whose marriage broke down and who has been through the divorce process. The fact that I was married in a different domicile meant I was able to get a divorce in another domicile and remarry legally. That process enabled me to maintain a relationship of great civility and courtesy with my former spouse which might not have been the case had we to go through the then existing Irish process. It gave me an opportunity to remake my life, as it did to my former spouse, and for that we must be very grateful but I always regretted that so many other people did not have that opportunity.

The presence of divorce in my case did not, and in virtually all cases does not, stand as a threat to the fabric of society or the well being of the nation as a whole. It is something which is resorted to only when the marriage has irretrievably broken down. It is not something which a person approaches lightly or with any great enthusiasm. It is, as I say, a final resort but the very fact that it is there can have an enormously civilising, stabilising and strengthening influence in society.

The divorce process will only work properly if there are sufficient, adequately staffed family law courts which is not the case at present. The waiting list in virtually all courts is outrageous. People can wait for separations for two to three years at present and they are often forced to live in the same family home during that time where the situation is exacerbated. The courts have not been sufficiently responsive for the most part, with some notable exceptions, to the new demands. The State has not, as yet, provided adequate resources. We do not want this divorce legislation to be an Irish solution to an Irish problem, whereby we enact the legislation but do not provide the resources to implement it. If there are not sufficient judges to hear the cases or sufficient lawyers capable of handling the cases, that will be the case. As I know the Minister agrees with me, my plea to the Government is that in anticipation of this Bill there is an urgent need to extend the range of family courts available. I know there are plans but they are not adequate. There is an urgent need to update the procedures and ensure that, having provided facilities for the possibility of divorce, we do not renege on them and our last situation is as bad as the first.

However, I welcome the Bill and look forward to contributing on Committee Stage. I compliment the Minister and his staff on the way in which they handled this issue from day one.

Mr. Dardis

In welcoming the Minister of State, Deputy McManus, I must say at the outset how impressed I am with what Senator Manning had to say. It is very appropriate that Members bring their personal experience to the House and his is one from which we can benefit. It is not one with which many of us are familiar at first hand so I welcome what he had to say.

The Bill signals an historic change in Irish society, which may be seen in time as a singular change in this century. Whether we approve or disapprove of divorce, we must accept the need for this legislation and that people have made their judgment known through a referendum. It is almost a year to the day since we debated the Fifteenth Amendment of the Constitution Bill, 1995, the wording of which people approved on 24 November 1995, by a narrow majority. During that debate I said it was inappropriate and unhelpful to put detailed legislative aspects into the Constitution which would be better dealt with by legislation. I still believe that to be so and that constitutional cases are likely to arise as a result. I concede that, were it not for the drafting of the wording, it is probable the question would have been lost and we would be back to square one. I agree with Senator Manning that an Irish solution to an Irish problem was incorporated in the wording put to the people. It is one I suspect of having a telling impact on the outcome of the referendum. I felt so deeply at the time about the inappropriateness of how it was dealt with, I almost voted no, which is curious.

I believe divorce should be available to people who need it and that much misery may be avoided by its availability. Since I favoured divorce and the right of people to have a formally recognised second relationship, I voted yes. I welcomed the people's verdict expressed on 24 November 1996 and welcome the consequent legislation before us today. I recognise that without the insertion of the particular words, it is questionable whether the referendum would have been carried.

It has taken a year to bring the legislation before us because of the court cases which arose from the referendum. Former Senator Hanafin is to be congratulated on the way he conducted his campaign. I did not agree with much that he said, but he behaved in a dignified and reasonable manner and distanced himself from people who were far more extreme in their views and who used intemperate language. He is to be congratulated on how he conducted his campaign and abided by the court decision.

The Seanad has a good record of being unemotional and using temperate language in debating this and other matters, especially Northern Ireland. Nowadays there does not seem to be a constituency for moderate language and a temperate approach. Unless one says something extreme and provocative, there is no media coverage or radio or television interest. That is regrettable because the middle ground is not being accurately reflected in the reporting of events in this House and within Irish society. As I said it appears there is no constituency for the middle ground. I suppose it is the nature of the news gathering business that it takes extremes and dramatic incidents to grab public attention and newspapers are in the business of selling more copies. I understand why they adopt that position but it is regrettable the middle ground frequently fails to gain much publicity.

This legislation is a small incremental step and I suspect we could be back here in ten years' time, if we are spared, to amend or improve it because, in the future, the time required to become eligible to apply for a divorce will reduce.

As has been said, we have had judicial separation in this jurisdiction. It was possible for couples to end their relationship but was impossible for them to enter a second relationship. That is why this Bill is before us. The courts could hand down judicial separation orders without regard to fault and, as a result, an innocent man or woman could be left by their spouse at an early stage in their marriage with no right to participate in a legally recognised family relationship for the rest of their life. That was wrong. We reformed our laws in which this Minister was centrally involved — to allow one party to withdraw from a marriage without giving them a second chance, which we are now doing. We were in the curious and anomalous situation where a marriage could be dissolved by the Catholic Church but people could not legally remarry. We now also have the extraordinary situation of a bishop marrying legally; it has not happened in this jurisdiction but it could. Up to now, the person whose marriage had ended could remarry; this is not right. Legislation should give people a second chance.

The State should not institutionalise misery. That happened to a degree over a number of years. Where marriages had unquestionably failed, people were living in misery and under pressure and had to continue doing so. It is inappropriate for any State to impose that misery on people. I do not agree personally with divorce and hope and pray I am never faced with that dilemma. Those whose marriages have failed irrevocably should be free to withdraw from it. There should be procedures, as Senator Manning said, which allow them to do so humanely and without confrontation and the State has an obligation to facilitate that. The figures for broken marriages the Minister gave underlines that. They are dramatic.

It is also inappropriate for the State to discriminate against minorities on the grounds of religion or belief. That is something with which the Minister can identify in his personal life. It is wrong that the State should have compelled people whose churches allowed them to divorce to remain in relationships.

The breakdown in society has been widely debated as part of the background to the referendum and the Bill. Some of the remarks made during those debates were offensive to people in, say, Northern Ireland. There is no evidence that society in Northern Ireland or in Europe is any better or any worse as a result of the availability of divorce. The statistical background indicates that we are not so different from the rest of Europe in terms of marriage breakdown. However, there is a duty to try to save marriages. It should not be so easy — and this legislation does not purport to make it easy — that people can just walk away from relationships. I doubt that anybody enters a marriage on the basis that they will walk away from it; people take their obligations seriously when they marry. There is an obligation on the State to do whatever it can to try and save marriages through counselling, support services and the availability of good information. I hope that will be evident when the legislation is enacted.

It would be regrettable, although I suspect it will be the case, if voluntary bodies were obliged to bear the brunt of dealing with marriage breakdown and trying to prevent it. One must recognise the work done by the Catholic Marriage Advisory Council and other bodies over the years. I hope the burden they will face will not be greatly increased as a result of the State abdicating its responsibilities in this area. Senator Manning referred to the trauma involved in going to court and I agree with him. It is important that people who go to court will not be intimidated and will be facilitated in trying to reach agreement without having to go through a long, tedious and confrontational procedure.

A question about the Bill arose in the Lower House and I am not happy that it has been completely disposed of. Perhaps the Minister might enlighten us. It is the question of a couple living under the same roof but living apart. People who live in rural Ireland — it is also probably the case in urban areas — are familiar with cases where couples have lived under the same roof for several years almost without meeting or speaking to each other. The problem in such cases, which is disturbing and which I learned about from friends who share my rural background, is that the almost routine legal advice to each party involved is to stay in the house. Otherwise they might find that their property and financial rights are infringed. The Minister might elucidate on this matter.

How do people living apart and occupying the same house come within the ambit of the Bill? Will divorce be available to them or will they have to live separately? The Minister stated previously, in the context of other legislation, that the term "living apart" had a clear and settled meaning in law and that he was satisfied the courts would follow this meaning in the divorce context. However, I am still somewhat uncomfortable about this matter. It tends to come to the fore in cases where property is involved and where people are given specific legal advice to remain in the house in case their rights are infringed. Is it possible for people to seek a divorce in those circumstances?

The question of ante-nuptial agreements will come within the ambit of the Bill. It is likely that formal ante-nuptial agreements will become more commonplace in cases where property is involved. It is widely practised in England. Section 13 (1) (c) refers to variations, for the benefit of either of the spouses and dependent members of the family or any or all of those persons, of an ante-nuptial or post-nuptial settlement including such a settlement made by will or codicil made on the spouses. If a will is involved or where people freely enter into an agreement before they marry, it appears under this legislation it will be easy to set those agreements aside. Is that not drawing the brush too broadly? Are we intruding to an inappropriate degree where people have entered freely into agreements? I appreciate the difficulty involved. Where agreement cannot be reached there must be some procedure whereby the court can intervene. However, I have reservations about that subsection.

This legislation is necessary and desirable. It is imposed upon us following the result of the referendum. However, unless there are resources to make court procedures easy and user friendly and to put into counselling, we are only deluding ourselves into thinking we will reduce the evident misery caused by compelling people to stay in broken relationships and not allowing them to legally enter into second relationships. Senator Manning made some salutary comments in that respect based on his experience. There is also the wider issue of the capacity of those with money to speed up the system. Free legal aid is available but I am worried about the possibility of a two track system, a fast track for those with money and a slow track for those without. I hope that will not arise and I am sure the Minister does not wish it to arise.

Mr. O'Kennedy

When we debated the referendum Bill I said the people had supreme authority and that I, like every democrat, would accept their decision. In line with that, I accept the people's decision and will address my remarks to the Bill, which was introduced to give effect to it. However, I greatly regret the Government's intervention in the campaign. It did no service to democracy; it was heavily funded, unbalanced and unfair. It has left deep scars in our society.

I also regret that the Supreme Court, while it acknowledged it was contrary to the provisions and norms laid down in a previous decision, did not find that the financial intervention by the Government was improper and such as to nullify the referendum. However, I accept the decision of the Supreme Court. The Government's actions have caused much hurt and offence where it should try to promote a common purpose and the common good. The last thing society needs is divisions such as those which have followed the Government's intervention in the campaign with major financial resources and public relations programmes. I hope the Government will reflect seriously on the impact it has had.

In all the arguments advanced by the Minister in this and previous debates we are being asked to recognise the reality of marriage breakdown, to recognise the problems that follow marriage breakdown and to legislate for that. Debating this referendum Bill no member of the Government referred to a fundamental element of our Constitution which informs or is meant to inform all of our laws, procedures and judicial decisions, namely, respect for the common good. The common good is enshrined in our Constitution as being of the most fundamental importance and it is referred to in at least eight places. The common good of society is the fundamental priority and obligation on Government, on Parliament and on the courts. The obligation to seek to promote the common good is stated in the preamble as well. Article 41.2.1º states:

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

Ms Gallagher

That should be scrapped.

Mr. Norris

Hear, hear.

Mr. O'Kennedy

People who support this legislation and the referendum to bring about divorce reject the supreme and overriding importance of the common good, as outlined throughout our Constitution. Perhaps it is not surprising, because those very people who want to see reform, as they call it, have a different interpretation of the common good as have members of the Government.

Mr. Norris

That is right. It is not women in the kitchen.

Mr. O'Kennedy

The Senator can make his statement later. I did not expect support from him. I will not be distracted by his predictable intervention.

An Leas-Chathaoirleach

Senator O'Kennedy is to be allowed make his contribution without interruption. Senator Norris will have his opportunity to make any point he wishes.

Mr. O'Kennedy

It is clear from our Constitution the common good overrides every other right in the Constitution. Individual rights cannot be exercised without regard to the common good of society. The general theme and direction of Government worries me. The Minister's introduction today was littered with phrases such as "modern society" and "modern provisons" as if any other view is antediluvian. Those clichés are used to avoid any proper objective analysis. That is a sad reflection on the role of the Legislature.

It is unacceptable that a Bill which will bring about major change of such vital importance can pass through the Oireachtas almost on the nod. Deputies and Senators have constituencies to deal with and other things to attend to. This is a sad reflection on society where now we ignore the common good in dealing with our immediate pressures and priorities.

The extent of marriage breakdown and the need for family law reform to cope with it is not surprising when we show so little awareness, much less respect, for the common good and stability of society. Two Senators in the House today, for instance, do not want to support the special role of woman in the home. Should we be surprised there are homeless children?

Ms Gallagher

The Senator is misquoting me. I resent the Constitution only referring to woman in the home as if she was an appendage to the kitchen sink.

Mr. O'Kennedy

Your interpretation of woman in the home is as an appendage to the kitchen sink.

Ms Gallagher

It should not be in the Constitution.

An Leas-Chathaoirleach

We cannot have a debate across the floor on this matter.

Mr. O'Kennedy

Most Irish people are gravely concerned that neither the Government nor the Oireachtas shows any concern for the overall stability of society. When we see the problems we decide to establish new courts and provide for more lawyers. I am a lawyer and I know how ill equipped lawyers are to deal with family breakdown. I know of the pressure on lawyers every day. The Minister can say what he likes in his reports on procedures but I know how little time the lawyers have and the consideration they will be able to give family law cases. They will be there only to represent their own clients. Where that representation means rejection of the position of the other side or of the children, that is what they will do. They are not in the business of healing the ills of society. I am not saying this by way of criticism of my profession. That is what they are paid to do.

Do we choose to blind ourselves to the consequences of this? We can see what the Minister in his various responsibilities has to deal with every day. We see family breakdown, lack of cohesion within the traditional family, and vindication of the rights of individuals as distinct from the responsibility of family and social units. Do we want to blind ourselves so much that we now present another programme of "reform" in the expectation that that it will improve the quality of our society? I do not choose to be blinded. I regret the way in which the Government and Members of these Houses can let legislation of this kind through without reflecting the views of those who are greatly concerned about it.

Some anomalies have been pointed out. When discussing them people refer to the influence of a particular church or any church. The Roman Catholic Church is most often focused on. I happen to be a member of that church, but my views are not based on any obligation I have as a member of that church, but on my concern for the stability of society which I see being undermined every day.

The Minister said other countries where divorce is available do not have problems. That may be so. I will not judge other societies but I hope patterns and trends in social stability in the major cities of America, Germany and Britain are not imported. The trends one can observe both in television presentations and elsewhere do not reflect the values of the people I represent.

People speak about the church and nullity and we are told that the church is looking two directions. I am not concerned with which way it is looking but I stress again that the civil law as determined by court decisions on nullity is there to be implemented by the State if and when the Minister chooses to introduce statue law to reflect the reality of court decisions. I have acted in nullity cases. It is nothing short of a shame that 20 years after nullity was established in court cases we have not introduced nullity into our legislation. Senator Dardis referred, in good faith, to the anomaly of the church granting nullity. Let us be clear that divorce is quite different from nullity. Nullity is a determination that what appeared to have all the characteristics of a contract never had such characteristics. I am talking about civil nullity.

Mr. Norris

Something which did not take place cannot be terminated.

Mr. O'Kennedy

I am talking about an agreement which appeared to have——

Mr. Norris

It cannot be terminated.

Mr. O'Kennedy

Of course, it is not terminated; a decree is made——

Mr. Norris

Thank you, that is my point.

Mr. O'Kennedy

There is nothing to be terminated. A decree is made that the agreement never had the essential characteristics of a contract. For example, it could be a contract to buy and sell land. A contract can be undermined be a lack of proper consensus, intimidation, deception and so on. I argued this successfully in two cases before the Supreme Court where nullities were decreed because what appeared to be a marriage contract did not have the elements consistent with such a contract. If the State wants to correct that anomaly it is up to the State to do so. However, the finger should not be pointed at any one church by saying we need divorce to correct an anomaly in how that church operates, which is what some Senators seem to be suggesting.

Much of the detail in this legislation will be the subject of considerable debate on Committee Stage, in which I hope to participate. However, I wish to make the point that this legislation is not about giving people a second chance. Let us not delude ourselves that we are talking about only a second chance. The Minister should say "a third, fourth or fifth chance". If he said that openly and clearly people would know that this Bill opens up all those chances. It is not just the right to remarry, as Ministers say — it is the right to remarry, divorce, remarry, divorce and remarry again. Can we, at least, be honest when we address these issues rather than saying it is about second chances and the right to remarry? The experience in other countries where divorce exists tells us very clearly that there is likely to be a stronger inclination towards divorce in the second and third unions than in the first.

Perhaps it is time that some of us made honest admissions. I have been fortunate to live in a society where we have had the stability of marriage and where families and children have felt that security, unlike families in other countries. The fact that marriage here was forever had a very positive influence on marriages such as my own. Perhaps my partner had a thousand good reasons a thousand times to say the relationship or the responsibility I was exercising was not what it might have been. However, the commitment that we and others made on a permanent basis is one of the most reassuring elements in our society.

I regret that many people who want to make that permanent commitment are now being told it will no longer be a permanent obligation. I greatly regret that for the couple themselves and for the children of that union. I have seen the positive security of young people with secure family backgrounds, which some might call traditional or old fashioned. I have seen the healthy attitudes of those children. They are not the problems in society about which we are talking; they are the fortunate ones. The unfortunates are the children of marriage breakdowns.

I would like to see much more support from all sides for existing unions and families, including the women who play a hugely important role in the family which nobody else can even begin to emulate. The father's role in the home does not compare to that of the mother. I do not want to hear that being denigrated by any Senator having regard to the stability it brings about.

I have lived in other countries and I have seen the children of parents who have divorced and redivorced. I dearly hope that society in Ireland in the next ten to 15 years will not reflect the breakdown problems and lack of cohesion which are a feature of many other societies where marriage is becoming a thing of the past. Our Constitution still recognises the family as the fundamental unit -we did not amend that. I know Senator Norris disagrees with this "icon", as he calls it, being endorsed in our Constitution. However, it is there and until such time as the people want to change it, we are all obliged to respect, endorse and uphold that family in all its forms.

I now wish to refer to some of the practical consequences which will follow from this legislation and which will be addressed on Committee Stage. Until now there have been breakdowns, separations and court decrees, which were called in court divorce a mensa et thoro and did, in fact, end an existing marriage contract in that people's mutual obligations and rights were thereby terminated vis-á-vis each other. That was already happening before this Bill was introduced. People do not have to suffer in an oppressive, unacceptable union. I have great sympathy for such people, particularly women who are battered or ill treated by alcoholic husbands or who are not properly provided for. People have rights.

We are now talking about giving the opportunity to the men who have caused that hardship, oppression and suffering and who have shown that lack of responsibility to do it again in a second union. Will many of those who did not have the sense of restraint needed to make the first union survive or who did not take responsibility for their children be better equipped the second time around? Will their inclinations change? Do we want to fool ourselves that the nature of the delinquent ones will suddenly change? I cannot accept that.

I wish the Minister would acknowledge that the less recourse we have to this legislation, which I am required to reluctantly accept, the better. I would like to see real family support legislation. I would like to see the woman's role in the home vigorously acknowledged and supported in every way. That pivotal role in society is recognised in our Constitution. What is this Government doing about it? We are laughing at it and calling it "pots and pans" or "tying her to the kitchen sink". That is a terrible denigration of such a vital role in society. When are we going to give her the support to which she is entitled?

I was privileged, as Minister for Finance, to ensure that, after the Murphy decision in the Supreme Court, two separate tax allowances were given to married couples where both spouses were working outside the home. I insisted that we could not discriminate against the working wife at home. This was at a time of great financial constraints, from which this Government does not suffer because of disciplined actions taken some years ago. I insisted that the same right be given to married woman at home. That is endorsed in the legislation and tax code we have adopted since then.

The Murphy decision will have to be studied carefully in the context of the consequences that will result. We are talking about cohabiting couples. They are not covered by the Murphy decision. I know we are going to great degrees to be sensitive to such couples. It seems of concern that we do not oblige people to marry if they do not want to but the State has obligation in this regard. The court decisions state that one should not penalise the status of marriage. The Murphy decision says very clearly that the status of marriage and the established union in marriage should not be penalised in any sense but promoted and encouraged. Tell that to those who say that the married woman in the home is tied to the kitchen sink. It is an arid cliché that seems to justify an argument that is not based on reality.

It is time we made it clear that this Government and Parliament will do all that is possible within its laws to vigorously support marriage as against cohabitation and that it will provide proper financial support for the married woman in the home to ensure that vital role is protected. The State cannot and must not provide an inducement to undermine marriage. We must be careful of this because of all the rights and provisions now being brought in. That would be contrary to the common good enshrined in our Constitution.

Whether willingly or not, that is what is happening under a plethora of "reform" legislation introduced by this Government. We are demeaning the role of the married woman at home and giving every inducement by way of what we term "supports" to the so-called family law reform. The Minister has proved himself on the enlightened programme of family law reform he has introduced.

There is not one element of family law reform in anything this Minister has done. There are lots of examples of reform of family breakdown law but where are the elements of family law support?

Ms Gallagher

The Legal Aid Board, the age of marriage, the notice of marriage.

Mr. O'Kennedy

Where is the family law that will insist that this very special element in our society will be protected and enhanced in accordance with the common good? Let the Minister tell me where he has introduced one element to protect, advance and endorse that as distinct from what he calls family law reform which provides for more breakdown cases, courts and legal aid. Is that family law or family breakdown law? Let us recognise the reality and not dress it up.

Because of the provision that has existed until now on separation, divorce a mensa et thoro, separation has been by court decree or through a deed of separation. At that time, the parties to the separation entered freely into a binding legal agreement in civil law. Does the provision the Minister is introducing, and we are being asked to endorse, mean that one or other of the parties can go to court afterwards to get a divorce, changing what was a binding legal arrangement on a separation deed ten years before? Would it mean that where two adults reached agreement one or other could go to court and say, “We now have a divorce that gives me the right to review all this.” We are focusing on rights. This Government is all about rights but responsibilities do not enter into the equation. Can people exercise the right to go back to court and say that under the provisions of the enlightened, modern and informed legislation which we pride ourselves on, they can nullify the agreement they entered into?

The Minister should look at this because there are countless such agreements in solicitors' offices throughout the country. We are all in favour of helping people who have problems and ensuring women are not tied to irresponsible husbands, be they alcoholics, wife beaters or whatever. I will fight to the end to support those women. I am also very much in favour of people being responsible and having a society informed by the common good. I have not heard one word from this Government about the common good. I have heard it denigrated, as was particularly the role of the married woman at home by Members of the Government party.

Mr. Norris

I admire the extraordinary eloquence of Senator O'Kennedy and the masterly, almost contrapuntal way he turned in his all-purpose speech, which I have heard many times. It contains his three regular elements, the Constitution, his career as a Minister and his integrity.

Senator O'Kennedy gave his speech a new vigour today by giving it some twists. The Senator wilfully misunderstood, perhaps, those of us who have reservations about the recognition in the Constitution of the special position of women in the home. The 1937 Constitution is a very fine document but it is of its period. The Irish people, society and State have moved on since then. Our understanding of the nature of society and the role of various institutions which we all cherish has advanced and changed. Senator O'Kennedy might not regard it as an advance but it is certainly a change.

What people find offensive about the reference to the woman in the home is that it places her in the home and appears to confine her there. What is the role of the father in terms of family? It may be different but it is certainly important. It now appears to many people that this is a typical view from the mid 1930s of the corporate estate where, in that historical context, woman was seen as the servant and the chattel of man.

Mr. O'Kennedy

That is a total distortion of the purposes of——

Mr. Norris

Must I be interrupted in this way?

Acting Chairman (Mr. Dardis)

Senator Norris, without interruption.

Mr. O'Kennedy

I am not going to listen to distortion of that kind. Senator Norris has interrupted me more constantly than I have interrupted him.

Mr. Norris

We are fairly even and I enjoy it.

Acting Chairman

We will call it a draw and proceed.

Mr. Norris

This was a prevalent view of woman in the 1930s, certainly in Italy and Germany which were making the running in terms of their specific forms of political organisation. There was no question but that woman was regarded as a kind of breeding animal to be kept at home and subjugated to produce the new master race. This cannot be denied. Some may dislike it——

Mr. O'Kennedy

That is not what the Constitution says.

Mrs. McGennis

Perhaps Senator Norris could be more accurate.

Acting Chairman

Senator Norris, may I ask you to be more temperate in your language?

Mr. Norris

No, you cannot.

Acting Chairman

I can ask you.

Mr. Norris

You can ask but I will not oblige because I am speaking of the organisation of Germany and Italy which provided part of the context in which the Constitution was created. I am entitled to do so and I do not consider it to be intemperate. If Senator O'Kennedy does not understand the concept of historicity, then so much the worse for him. It is not possible to understand documents such as the 1937 Constitution without having at least a nodding acquaintance with the political environment that produced them.

There is a lack of balance here. Woman is singled out; her role is effectively defined as being in the home. The Constitution does talk about her anywhere else nor does it talk about man in his relationships. Senator O'Kennedy referred to duty in addition to the obligations the State has towards the individual. What about the duties and responsibilities of the father, of the male partner and so on?

Senator Lee suggested that the legislation provided for a kind of no fault divorce. This is fine because there is something miserable and begrudging about only allowing people to separate when at least one of the parties can be humiliated and determined to be the culprit. Similarly with the provision of a divorce which implies guilt and responsibility and adds this burden to the already difficult and problematic areas of the breakdown of an intimate personal relationship. If the Bill can be characterised as providing for no fault divorce, I welcome it all the more. It should do so because there is something mean and begrudging about insisting that somebody be held to blame.

No possibility of human healing is encouraged by trying to hang blame around the neck of one party or another, although I sometimes wonder why I bother. The family is the basic building block of society. The nuclear family is a naturally occurring phenomenon. It was ordained by God and so on. I have been surrounded by this since the day I was born. There are occasions, when I hear Senator O'Kennedy, etc., when I ask why, if it is so natural and was decided upon by God and if it is a big building block of society and is the primary element in the Constitution, it cannot look after itself? Why does it need the immense support to which the Senator refers? He appears to consider it more fragile than I.

Of course I support the family. I am glad Senator O'Kennedy has moved on since the last debate. On this occasion he spoke about support for the family in all its forms, making it clear that he considered I should be included in this and that I was compelled, as were all other good citizens, to acknowledge the primacy of the family in all its forms. I do so; I am one of its forms. Although my relationship is not encouraged, apparently it was not ordained by God and has other various defects — it is not specifically mentioned in the Constitution and neither I nor Ezra is stuck in the kitchen and tied to the kitchen sink by the Constitution — it has, nevertheless, survived for 21 years. I wonder how I managed to do it without all this support and funding. I do not think I was ever counselled by anybody except good friends.

However, if the heterosexual unit of production is so fallible and weak, as are most human institutions, I applaud whatever can be done to assist, especially in the very difficult circumstances of breakdown. One wishes to see people achieve their maximum potential in the relationships that reflect their reality. For the vast majority of citizens of this country this will be marriage. Virtually everybody goes into the institution of marriage with the intention that it will last for life. However, sadly this is not always the case and provision must be made for the dissolution of marriage.

Senator O'Kennedy raised the issue of nullity and instances several cases in which he took part. I am aware of the Catholic notion of nullity. The Senator did not respond to my invitation to spell out the characteristics of marriage because perhaps he realised that he would have been in some difficulty had he done so.

Nullity is an amazing phenomenon. Under it, people who have been married for 20 years, have lived together consistently for 20 years, have regularly gone to church, theatre and the races together and have managed to produce five or six children then discover there was no marriage. The Senator fell into the trap of referring to "terminate" under nullity. It is not possible to terminate something that does not exist, but in the linguistic structure of what the Senator said, he acknowledged without apparently realising the fact that something had existed and that what is involved in nullity, especially in the theological courts, is a three card trick. Of course there is a marriage and the rubbish about psychological consummation is tripe.

The legal courts are not much better. For example, I recall that, in the constitutional case I took on the question of homosexual behaviour, the Chief Justice, supported by two eminent judges, gave as one of the reasons for maintaining the criminal law was to bully and browbeat people on the borderline into marriage. This is an odd and disgusting view of marriage, although from one point of view it has a logical consistency. However, within 18 months of citing this one of the judges involved determined in a case in which perhaps Senator O'Kennedy was involved and in which evidence was given that the spouse had been homosexual at the time of the marriage and continued to practise afterwards, that as a result, there was no marriage. It was also null and void.

It is much better if we face human reality and stopped dealing in abstract principles. Senator O'Kennedy mentioned that I had referred to the family in some cases as an icon. It is highly dangerous when we make an icon out of a human institution and raise the rights of that institution above the happiness of the individuals participating in it. This is a nonsense. To venerate the abstract notion of the institution of marriage to such an extent that we are prepared to continue that absurd veneration even when the marriage has ceased to exist or to function and to thereby punish the participants, appears to be wicked, misguided and wrong.

I received and read a number of correspondences in this matter recently. However, I cannot agree with them. One person suggested that in the aftermath of the referendum and the situation we were faced with we should have a two track marriage system to cater for everybody. Those who believed in divorce could sign a contract that reflected this whereas those who were committed to the situation where marriage was eternal and could never be terminated should sign a mark two version. This is not necessary, even for a religious person. If one holds certain beliefs, gets married in church and makes a solemn commitment to somebody in church as part of a religious sacrament, then surely one is bound by that. The existence of divorce for other people is unlikely to shake one's belief if it is as strong as claimed. For that reason, no one whatever his or her religious persuasion, need feel threatened by this provision for divorce, which facilitates only those people who want it.

The other argument concerns people who have been divorced against their will, which is a painful and difficult matter. However, there are two parties to a marriage and it does not say much for the dignity of people divorced against their will if that implies they wish to cling desperately to partners who do not want them. This is hurtful and pitiable and one has compassion for those people. Nonetheless, should this attitude be encouraged by the law, that someone who is immature enough to wish to cling limpet-like to a partner who disdains him or her should be provided with the shackles so to do by a legal apparatus? It would be neither moral nor socially appropriate for this to be provided under law. While I feel compassion for a person who feels deserted, having been divorced against his or her will, in almost any case I can envision it is better for that person to have the marriage terminated. Most of them will be able to come to terms with it, although in those circumstances they probably need counselling.

Another matter raised was the contentious McKenna decision. I was amused because, despite what I regarded as the considerable intellectual dexterity with which Senator O'Kennedy treated his comparatively simple tune, in a manner almost analogous to that of the master, J.S. Bach——

Acting Chairman

The Senator knows he should not speak about Senator O'Kennedy when he is not here.

Mr. Norris

You should recall, Chairman, that you are most unwise to draw attention to his absence, as that is against the rules of the House.

Acting Chairman

I am bound by the rules of the House to draw attention to it.

Mr. Norris

Are you? I am grateful to you for doing that. One must deal with the substance of what other people have said and one cannot realistically expect them to sit here all day, so I unrepentantly——

Acting Chairman

You may deal with the substance without dealing with Senator O'Kennedy.

Mr. Norris

I suppose one could separate the two, perhaps with some small difficulty. I noticed a certain modesty — one element of his contributions usually consists of his career as a Minister and participation in Government but he did not mention that a Fianna Fáil Government spent enormous amounts of money to persuade people to vote "yes" in the Maastricht referendum. It is a mistake to be too partisan in these matters. Since I have been tempted into discussing the use of money for propaganda purposes, I hope the Government will be more modest and penny-pinching in providing funds for the current disinformation campaign on the light rail project. That is another of my hobby horses.

I wish the Minister well. This legislation is timely, humane, civilised, progressive and modern and these are good characteristics. We are in a more complex society, or perhaps it is that we now realise human relationships are complex. They always have been but we liked to delude ourselves that we lived in a specially ordered, neat little corner of the world which was unlike those jurisdictions where divorce was possible. I like to think we have now grown up.

In case there is another efflorescence of the post hoc ergo propter hoc fallacy, which I noted in the contributions of Senator Lee and Senator O'Kennedy, I am grateful to the Minister for including information on marriage breakdown in his well thought-out contribution. He pointed out that the number of separated persons has risen to over 85,000, an increase of 17,000 on 1992, and that this has happened prior to the introduction of this limited form of divorce. Anyone who argues, subsequent to the passage of this Bill, that it has led to the collapse of Irish society as we know it is on a sticky wicket although I have no doubt that will not inhibit certain persons from so doing.

Mr. Lydon

I am not happy that this Bill is going through the House. I was opposed to divorce from the beginning and still am but I doubt there will be another referendum in seven or eight years' time. However, one never knows and things might change.

Divorce will be detrimental for society. The figures for other countries show that it is always women who suffer most and the same will transpire here. The introduction of divorce will contribute further to the breakdown of marriage rather than reduce it. We have been over this ground before but it would be remiss of me not to put down a marker.

The Bill is a nail in the coffin of the Irish family. That is not the Minister's fault, it is part of the liberal agenda which is pushed by the left. Nor do I blame the left, I admire them because one always knows where they stand. I blame the two major parties who bought into the policies of the left in their pursuit of power and were willing to bend over backwards to adopt or adapt anything that was put forward in order to stay there. That saddens me because it is bad for democracy.

My main problem with the Bill is that there is no right to appeal. I may be wrong and the Minister can correct me but I understand that in the UK there is a period of six weeks in which it is possible for a spouse to appeal against a decree nisi. There should be a right of appeal here also but if it is in the Bill I did not see it and that is a flaw. Perhaps the Minister will clarify that when he speaks.

The people voted for divorce so there is no point calling a vote here as nothing can be done about it at this point. I would have been happy if the 51 per cent had voted the other way but in a democracy one must accept the will of the people. I could not support or vote for this legislation because I believe that what God has joined together no man has a right to put asunder. A civil marriage is a different matter but in a marriage such as was mentioned by the previous speaker, where the vows were taken before God, those vows should never be broken but this Bill does attempt to do that.

Minister for Equality and Law Reform (Mr. Taylor)

Senator Lydon said one thing with which I agree, and he put it succinctly — we have been over this ground before. I do not think the purpose of this debate was to re-run the divorce referendum, that is over and the people have spoken.

I thank all Senators who addressed the House in the debate and I appreciate the general welcome given to this Bill. A wide number of issues were raised and I do not propose to deal them all but I will comment on a number of points.

Senator O'Kennedy made great play of the Constitution; he quoted various points and stressed its sanctity. I support that but he seems to have overlooked that the Constitution provides that a law may be brought in to provide for divorce. That is now an integral part of the Constitution and it is not acceptable that one part of it may be extrapolated to the exclusion of another.

The people directed the introduction of this law in its full detail. The Bill was published and presented to them before they voted. It was not the case that they were asked to vote for a vague provision and the type of divorce would emerge later. The Government went to great lengths and pains not to approach the matter in that manner but to publish in extenso the Bill which would be introduced if the people voted for divorce.

The Bill is faithful to the draft produced beforehand. Provision was made in the Bill published before the vote took place for the parameters of the divorce jurisdiction, how it would operate and the provisions for spouses and children.

I thought Members of both Houses were democrats and accepted the will of the people. It is disappointing, therefore, that there is some stepping back from the provision in some quarters. This is dangerous because the ultimate democracy is a vote of the people in a referendum. The highest court in the land held that the referendum was properly conducted and the least any Member of Parliament can do is subscribe to the will of the people expressed in a referendum.

A number of Senators raised the issue of the interpretation of the term "living apart". This was debated when the constitutional Bill went through both Houses but the crucial factor in the description is not so much whether people are living in one house but whether there are two separate households. This key provision will involve the consideration of the nature of the ties which bind people and an examination of whether there is any community of life between the spouses in a specific case. It has been stated that the practical test applied in cases where the parties are still living under the same roof is usually whether one party continues to provide matrimonial services to the other and if there is any sharing of domestic life. Most cases will be clear but some will require examination and determination by the courts; it will vary from case to case.

Senator McGennis and others raised the issue of access to children by grandparents, brothers and sisters, etc. While a provision to allow persons such as grandparents, aunts or uncles to apply in their own right to the court for access to a child appears desirable, and may be in the interest of the child, the constitutional rights of the parents may make for some difficulty in framing an appropriate measure. The Constitution guarantees the rights of parents and although I do not suggest it cannot be done, great care is required regarding the structure of provisions in terms of going outside that ambit. I am preparing a children Bill which will, among other matters, update the law on guardianship. This subject is being addressed in the context of that Bill. However, the legal issues must be closely examined with regard to the wide ranging rights of parents under the Constitution.

I was curious and bemused to hear Senator Lee question the effectiveness of the mediation process. He must be labouring under some misunderstanding in that regard. He will be interested to learn that 80 per cent of the couples who come before the family mediation service, which operates under the ambit of my Department, achieve successful outcomes. Amicable agreements result from the work of this most effective service. It is staffed by people of the highest professional calibre and I am anxious to extend and expand the service as much as possible in the future. A second family mediation centre outside Dublin opened in Limerick this year and I hope and expect it will be possible to avail of the services of private mediators at other locations around the country under the ambit of the family mediation service on a contract basis.

However, in broad terms, the progression of the mediation service in Ireland is at a relatively early stage. We lack a range and number of skilled professional and trained mediators but work is progressing in that regard. The number of trained mediators in Ireland is small and more people and training are required. It is a skilful occupation which requires a much more extensive and prolonged course of training, practice and education than counselling. It is an important profession and it is in the plans of the mediators' organisations and others to ensure more people enter it because the demand exists and will increase. It is a most effective and worthwhile process and I urge anybody who needs it, to avail of the family mediation service or the small number of private mediators in practice around the country. It is a much more effective method of dealing with problems than through the courts and a high rate of either total or partial successes are achieved.

There was reference to legal aid in the context of divorce. The free legal aid service has been hugely expanded. The number of solicitors and support staff has increased. It is working well and the service is now well geared to deal with divorce cases which will undoubtedly come to it soon. I concede it was not in a position to do this three or four years ago, but the number of staff has approximately doubled. The free legal aid services comprises skilled professionals and the waiting lists have reduced dramatically. A similar position applies to marriage counselling where funding has hugely increased. Its operation is kept under review.

Senator Lee referred to the impact of divorce on children. However, he is confusing the impact on children of separation rather than divorce, which occurs more than four years after the separation. Of course a separation has an impact on children. This is when the problem arises and not at the divorce which occurs many years downstream. The separation stage has nothing to do with the provision of divorce as envisaged in this Bill.

Senators raised the issue of the status of existing separation deeds. All existing separation deeds will stand unless they are altered by the court in the course of the divorce proceedings. One cannot provide that a separation agreement must, inevitably, stand in a divorce context which brings about a quite different legal position and result. After a separation procedure the parties are still married to each other and certain legal consequences continue to apply. After a divorce procedure the position is different. In the overwhelming majority of cases the arrangements made for a separation agreement would stand in the event of a divorce. However, there may be cases where different considerations would pertain at a later date, circumstances having changed and having regard to the fact that a new, different legal position was about to be created as a result of the divorce which would necessitate a variation in that procedure in the interests of one spouse. That possibility had to be provided for but this is done in a negative format in the Bill. It will stand unless the court sees a necessity for a variation.

Senator Farrell and Senator O'Kennedy made contributions with much in common. They harked back to the good old days and I could not help feeling a degree of nostalgia and sympathy for those days.

Mr. Norris

Do you mean the television programme?

Mr. Taylor

One has to satisfy one's dreams in some way. They are both unduly pessimistic about the way people feel about their lives. People are positive today. They go about their lives in a modern context and deal with problems accordingly. The law can only deal with reality, not some idealistic dream. I suspect that there were problems even in the old days. People might not have been as upfront as they are now but the problems were there. As legislators we have to deal with problems as we find them and the people, in adopting this referendum, have recognised that.

Those are the main heads which were discussed. I look forward to dealing with these issues in greater detail on Committee Stage.

Question put and agreed to.

Committee Stage ordered for Wednesday, 16 October 1996.

Acting Chairman

When is it proposed to sit again?

Mr Neville

Next Wednesday at 2.30 p.m.

Seanad Éireann debate - Thursday, 10 Oct 1996