Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016: Second Stage

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

I note that Senator Ruane and I are the only ones in the House.

The Minister for Justice and Equality is in the House.

The Minister is not a Member of the House. We need a quorum, even if it is only a miserable six.

Notice taken that six Members were not present; House counted and six Members being present,

The Bill, whose Short Title was changed from the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, will be debated in conjunction with No. 73, motion re statement for information of voters in relation to the Thirty-fifth Amendment of the Constitution (Dissolution of Marriage) Bill 2016. The motion will not be moved until Fifth Stage has been concluded.

The Bill, whose Title was previously the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, is a Private Members’ Bill which was introduced by my colleague, the now Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in 2016. As initiated, the Bill proposed to amend Article 41.3.2° of the Constitution to reduce the time period that spouses applying for a divorce must have lived apart from at least four years during the previous five years to at least two years during the previous three years.

As Senators will be aware, under Article 41.3.2° of the Constitution, as amended by the 15th amendment in 1995, a court may grant a divorce only where specific conditions have been met. The first condition is that on the date of institution of the divorce proceedings, the spouses have lived apart from each other for a total of at least four years during the previous five years. The second condition is that there is no reasonable prospect of reconciliation between the spouses. The third condition is that proper provision exists or will be made for the spouses and any children of either or both of them. The final condition is that any further conditions prescribed by law are complied with.

We must remember that in 1995, we were moving from a situation where the Constitution provided clearly that no law could be enacted providing for the grant of a dissolution of marriage to one in which divorce was to become possible for the first time, but subject to very specific conditions which were set out in the new provision inserted by the 15th amendment. The purpose of the mandatory period of living apart was to ensure that divorce would not be available on an easy or casual basis, to address concerns about what were described as "quickie divorces" and the development of what was described as a divorce culture in Ireland. The four-year period was intended to ensure that spouses would not enter into divorce lightly and would have the necessary time to reflect on the serious step they were undertaking. It was also considered that it would encourage spouses to attempt to reach agreement on the terms of their separation in a way that would ensure that when the divorce application came before a court, many of the key elements relating to children, finance and property might already have been settled between the spouses and a form of agreement reached. The four-year period of living apart can be accumulated over a five-year period, the reason for which is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that if it does not work out, they will not have lost their option to make an application for divorce.

The Family Law (Divorce) Act 1996, which followed the 15th amendment to the Constitution, made provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce and enabled the courts to make certain preliminary and ancillary orders in or after proceedings for divorce. It is now 23 years, however, since divorce was introduced in Ireland and the four-year minimum living apart period is now perceived to be unnecessarily restrictive and to hinder couples who have separated from regularising their legal positions and, in many respects, moving on with their lives. Ireland has one of the lowest divorce rates in Europe and that is to be welcomed.

Sadly, however, some marriages break down irreconcilably, causing immense sadness and stress for everybody concerned. It is my desire, and the Government wishes to ensure, that the process for obtaining a divorce is fair, dignified and humane and allows for both parties to move forward with their lives within a reasonable timeframe. The Government has taken the opportunity, presented by this Private Member's Bill to re-examine the provisions of Article 41.3.2° of the Constitution and consider the question of the scope of the constitutional amendment that might be proposed. I acknowledge the work of my colleague, the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in this regard. Following analysis, legal advice and consultation with all sides in the Oireachtas, the Government considers that removing the living-apart period from the Constitution so that it could be dealt with in ordinary legislation by the Oireachtas would be a more appropriate means to address the complex area that is involved here.

The Government is proposing an amendment to the Constitution to remove the four-year minimum living apart period from Article 41.3.2°. It is also proposing an amendment to replace the text of Article 41.3.3°, which deals with the recognition of foreign divorces with a new provision. The Bill was amended on Report Stage in the Dáil to provide for these amendments. It is the intention of the Government, subject to the passage of the Bill by the Dáil and Seanad, to hold a referendum on divorce alongside the votes for the European and local elections on Friday, 24 May 2019. It is with that in mind that I ask for the co-operation of the House at least in debating the issue. I assure Senators that I would be very happy to debate the issues, but if we are going to have quorums called on the whim of an individual Senator, then it is likely to frustrate the debate. I ask for the co-operation and understanding of all Senators in that regard, although I am not holding my breath.

There is no need for that. The Minister is completely wrong. However, I will reply to him in my contribution.

Do I have the protection of the Chair? Is the Chair going to allow the Senator -----

Am I going to have the protection of the Chair from unprovoked attacks by the Minister?

When the Senator's turn comes, he will. The Minister without interruption please. I ask for an orderly debate.

It is the intention of the Government, subject to the wishes of the Seanad, to hold a referendum on divorce alongside the casting of votes for the European and local elections on Friday, 24 May 2019. In that regard I ask for the co-operation of the Seanad to ensure that the deadline can be met.

The Minister will get it.

Of course, he will.

I have not got it so far.

The Minister has got it. I indicated that I am not opposed to the Bill; in fact I will speak in favour of it.

The Minister without interruption please.

On 26 February, my colleague, the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy, made an order under the Referendum Act 1998 to establish an independent statutory referendum commission for the purpose of the referendum of divorce. In accordance with the 1998 Act, the Chief Justice has nominated Ms Justice Tara Burns to act as chairperson to the commission. I believe it is important to have broad consensus in the Oireachtas for any proposal that will be put to the people. Having engaged in consultations with parties and political groupings on options for the scope of the constitutional amendment that might be proposed, I would like to acknowledge the broad cross-party support in the Oireachtas for the proposed changes. In this regard, I acknowledge the constructive approach of the Fianna Fail, Labour and Sinn Féin parties and I would hope that during this debate we might be in a position to allay any fears, queries or observations that some of the Independent grouping might have.

Section 1 makes provision for amendments to Article 41 of the Constitution. Paragraphs (a) and (b) propose the repeal of paragraph i of Article 41.3.2° of the Constitution. Paragraphs (c) (d) and (e) provide for the consequential renumbering of the remaining paragraphs of Article 41.3.2o. The effect of the amendment would be that the Constitution would no longer provide for a minimum living apart period for spouses who wish to apply for a divorce but that such a period could be defined in law by the Oireachtas. Removing the time period from the Constitution would give the Oireachtas a greater element of flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown and wish to begin again. As it stands the long period of living apart required under the Constitution frequently leads to couples seeking a judicial separation prior to obtaining a divorce with attendant legal costs, additional upset, stress and worry.

Should the referendum be passed, it is the intention of the Government to deal with the living apart period by way of ordinary legislation. In this regard the Government will bring forward a Bill to amend section 5(1)(a) of the Family Law Divorce Act 1996 to reduce the minimum living apart period specified in that Act to two years during the previous three years. Senators will be aware that I published the draft general scheme of a Bill to provide for this. This reduction of the time would enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs sooner. A shorter living apart period would also have the potential to reduce the legal costs involved as couples would be less likely to need to apply for a judicial separation or make a formal separation agreement, while waiting to become eligible to apply for a divorce.

Over time we have learned that complex questions of social policy are best dealt with through detailed legislation in the Oireachtas rather than in our Constitution. The fundamental principles and protections concerning divorce will not change and the Government is not proposing any changes to the other provisions in Article 41.3 of the Constitution. I note that Senator Ruane is smiling and I note her concern in this regard. We will have an opportunity to debate it. I do not disagree with much of what the Senator has said outside the House, but I am keen to try to achieve consensus on the question that might be put to the people with a view to gaining the approval of the people. The requirement that there be no prospect of reconciliation, therefore, will remain in the Constitution. The requirement that proper provision exists or will be made for spouses and children will continue in the constitutional framework but also remain the case that only a court of law will be in a position to grant a divorce. The Law Reform Commission, LRC, has included in its fifth programme of law reform an examination of the proper provision requirement for divorce. It has indicated that it will consider to what extent any further guidance may be provided to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at a lower financial cost.

Turning now to paragraphs (f) and (g) of section 1 and the Schedule to the Bill, what is proposed is an effort to modernise the provision on recognition of foreign divorces in Article 41.3.3° of the Constitution. The Government is proposing that Article 41.3.3° be replaced with a more modern readily understandable provision, which clearly provides that the Oireachtas may legislate for the recognition of foreign divorces granted under the civil law of another State. The proposed new text will do no more than to set out in express terms what the courts have found to be the present state of the law. However, to ascertain the present state of the law, it is necessary to examine the case law on the interpretation of Article 41.3.3°. The constitutional position regarding the recognition of foreign divorces should be clear from a reading of Article 41 of the Constitution. Currently, different rules apply to the recognition of foreign divorces, depending on whether for example they are granted within the European Union or outside the EU. The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside of the European Union. This 1986 Act provides that a foreign divorce which would be granted after the Act came into operation may only be recognised in Ireland if it was granted in a country where either spouse was domiciled on the date upon which the divorce proceedings were instituted. In this regard, it is important to note that recognition of foreign divorces granted prior to the commencement of the 1986 Act is governed by common law domicile rules, which are now consistent with those in the 1986 Act. The determination of domicile, includes an assessment of the person's intention to remain indefinitely in the foreign jurisdiction.

This has proved complex to determine over the years in some instant cases. By contrast, a test of habitual residence, which may be considered less complex and more clear, generally applies across the European Union. EU Council Regulation 2201/03, known as Brussels IIA regulation, governs the recognition of divorces obtained in another EU member state. Habitual residence is the key governing criterion for recognition of such a divorce. In this regard, I advise the House that the Law Reform Commission, LRC, has proposed to examine the legal issues relating to the recognition of foreign divorces as part of its new fifth programme of law reform after the referendum. I intend to legislate to introduce greater consistency in the recognition of foreign divorces and will be guided by the expert report of the LRC in developing proposals for legislation in this area.

The language of Article 41.3.3° which deals with the recognition of foreign divorces is consistent with a time in our history when divorce was expressly prohibited under our Constitution. The referendum in May, if we manage to reach that deadline, is an opportune moment to modernise this provision.

Section 2 provides for the title of the proposed amendment of the Constitution and the Short Title of the Bill. This section was amended on Report Stage in the Dáil in order to change the Short Title of the Bill to the, "the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill". If passed by the people in the referendum, the amendment will be known as the thirty-eighth amendment of the Constitution. These changes take account of the Thirty-sixth Amendment of the Constitution Act 2018 and the Thirty-seventh Amendment of the Constitution (Repeal of Offensive Publication or Utterance of Blasphemous Material) Act 2018, which were approved by the people in referendums since this Bill was first introduced. The purpose of the change in the Title of the Bill, to use the phrase "dissolution of marriage" rather than "divorce", is to better reflect the wording of Article 41 of the Constitution.

The aim of the amendments proposed in this Bill is to decrease the burdens on people whose marriages have, sadly, broken down. Ultimately, if the Bill is passed by the Houses of the Oireachtas, the people will have their say by way of referendum. I know the Irish people are very compassionate and will show empathy and understanding to those who find themselves in the desperately sad situation of a marriage broken down and with no prospect of reconciliation. I, therefore, commend the Bill to the House.

I thank the Minister for being here this afternoon. I give support to Senator Norris because I do not think it was out of an intention to delay the Bill that he called for a quorum but rather, because of the respect he has for the importance of the Bill, he felt people should be here to engage in the debate.

Exactly. I thank Senator Ruane.

It does not matter.

Senator Norris has form.

I welcome the Bill and the fact that a referendum will soon be put to the people on whether to remove the constitutional restrictions on how long a couple must be separated before they can legally be granted a divorce. This will be the third time the electorate will be asked a question on divorce and, hopefully, the last. It is sometimes a sad thing and sometimes a joyous thing when a marriage breaks down and a divorce is required but the State needs to facilitate an accessible route to dissolution of marriage where it is needed. The civil aspects of a marriage are a significant legal and binding contract and people need to be able to enter and leave these contracts to ensure the emotional and familial stress and burden that the breakdown of a marriage can have on individuals and those close to them is eased and that the State is not unnecessarily adding to the distress of our citizens.

I welcome that the decision of Government was made to further liberalise the provisions of the Private Members' Bill introduced by the now Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, when she was a backbencher. It is right to take cumbersome, detailed and technical provisions out of the Constitution so that we in the Oireachtas can do our jobs and legislate for these complex issues. It is important that we do not have to go back to the people for another referendum any time a change needs to be made and so such changes can be dealt with in the much more flexible legislative process. It was the right decision so I thank the Minister for advocating for this change.

It is welcome that this Bill recognises that the Constitution is not the right place where complex issues of family law are set out and regulated. Constitutional provisions are supposed to set broad principles that give us the environment within which the Oireachtas can write and pass laws. As we saw with our recent experience with the eighth amendment, ambiguous language can have wide-ranging and unintended consequences and make it very difficult for the Judiciary to interpret it fairly and for the Oireachtas to legislate as it needs to. I mention all this because, while I welcome the proposal to repeal paragraph (1) of Article 41.3.2°, I am concerned that the rest of the article is being left untouched. The Minister is aware of the remaining provisions in paragraph (2), which refers to a grant of divorce when "there is no reasonable prospect of a reconciliation between the spouses" and paragraph (3), which refers to "such provision as the court considers proper, having regard to the circumstances exists or will be made for the spouses, and children or either or both of them, and any other person prescribed by law". Essentially those provisions require that a judge must be satisfied that the couple are not going to reconcile and that proper financial provision has been made for spouses, dependants and children before he or she will be granted a divorce. This is a high legal bar to meet and, while I am not making a judgment on their merits, I am raising my concern that they will remain in the Constitution.

In a column for in February this year, assistant professor of law at Trinity College, Dr. David Kenny, raised significant concerns with the decision to limit this referendum to just the issue of time limits and I thank him for engaging with my office on this issue last week. He wrote that the requirement for proper provision means that, where possible, assets will be divided so that spouses and children can continue to enjoy the lifestyles they had during the period of marriage and that it will always be possible to revisit this at a later date. This means that, long after a marriage has ended, a judge may still inquire into the finances of former spouses and keep proposing new divisions of assets. This effectively means that, even after a divorce in Ireland, there could be no clean break. I am again not making a judgment on the merits of the provision at this stage because I have not been able to do enough of my own research and I am just querying whether this complex provision should remain in the Constitution or whether it should be dealt with in legislation.

Dr. Kenny then refers the "no prospect of reconciliation" provision and how, because the time limit has always been there, the time requirement has essentially done that job for the judge concerned because to live apart for so long can be, and in most circumstances is, determined as proof in and of itself of the unlikelihood of reconciliation. However, once the time limit is presumably removed, a judge may feel he or she needs to inquire into the reconciliation prospects more actively and vigorously. Perhaps judges will need more detail on the reason for the breakdown of the marriage and the circumstances thereof, greatly increasing the distress of the individuals involved but also moving us to a new situation wherein, although Ireland currently has a system of no-fault divorce whereby one does not need a specific reason to get a divorce, this could change in the future.

I am not making a judgment on the merits of these provisions at this stage. I am just asking the question as to whether they should remain in the Constitution or whether they should be taken out and dealt with in legislation. Did the Minister consider these issues when drafting the constitutional amendment? I know he referred to his own agreement, in a sense, in his contribution. What were the results of those discussions? These are complex provisions that impact on the intimate relationships of people living in Ireland and I am not convinced that those provisions should remain as they are. It would be a real shame if we missed an opportunity here to deal with this issue conclusively and had to come back for a fourth divorce referendum. I raise these issues with the hope of being constructive. I am, unfortunately, not able to stay until the end of the debate but I will read the Minister's response and may debate the matter further with him on the next Stage on Thursday.

Changes in the rules relating to divorce are afoot in England and Wales so this debate is timely. This morning's headlines were about reform to end the blame game between couples who are divorcing in Britain. It is currently the case that fault-based divorces, where there are allegations of adultery or unreasonable behaviour, take as little as three to six months to be completed. However, no-fault divorces can take much longer because couples have to prove they are living apart for at least one year in Scotland and two years in England, though certainly not the four-year term currently required in Ireland. The point is to change the rules so that couples will only have to state that marriage has broken down irretrievably. Furthermore, the rule change will prevent one partner refusing a divorce if the other one wants it although currently in England such a situation only affects 2% to 3% of divorcees.

Most of these changes are aimed at reducing stress and acrimony and allowing a time of reflection. It is proposed to provide for a period of six months from petition stage to decree absolute.

A key concern of the proposed changes is the protection of children by reducing ongoing conflict between partners. Finding fault, apportioning blame and having to prove a separation of two or five years were not seen as helpful. Furthermore, the justice system first and foremost attempts to resolve issues in a non-confrontational way. It is with this in mind that I support the Government's proposed amendments to the Constitution, especially as they are based on there being no reasonable prospect of reconciliation between the spouses. Having considered all circumstances, including children and others under any other conditions proscribed in law or complied with, anyone dealing with divorces will testify that no one enters into divorce proceedings lightly and very few come through them unscathed. The amendments are reasonable and do not in any way undermine or devalue the sanctity of marriage. They merely move with the times by ensuring the Constitution is completely fit for purpose.

I had noted in my diary that the debate would start at 6.15 p.m. rather than 6 p.m. I apologise to the Minister if I was the reason a quorum was called.

This legislation is extremely important. It is appropriate that I pay tribute to our colleague the Minister for Culture, Heritage and the Gaeltacht, Deputy Josepha Madigan, who proved, as have others, that if one brings a Private Members' Bill before the Houses, it may potentially become law and be put to the people. The Minister introduced this Bill because in her previous profession she had mediated in scenarios involving marriage conflict many times and this informed her view that the requirement that couples have lived apart for four years was not appropriate and a two-year period was more appropriate. Much credit is due to her for putting that issue on the political and Government agenda. The proposed referendum is welcome.

The Minister for Justice and Equality, Deputy Flanagan, has demonstrated time and again that he is a reforming Minister. This is just one of a suite of measures that he has brought forward to modernise our legal system. This Bill is not as contentious as the one that will be before the House for several hours tomorrow.

The proposed referendum should go ahead because people need to have their say. I welcome the broad support for the Bill in the House, with a small number of exceptions, and I look forward to debating issues of concern on Committee Stage on Thursday. Hopefully, by the end of the week, the Houses will have passed this important legislation to facilitate Irish people in making the final decision, which is one of the great elements of our democracy.

I wish the Minister well and sincerely hope that Second Stage will pass comfortably this evening, as I expect it will. I look forward to further debate on Thursday.

Sinn Féin supports the passage of this Bill and the referendum being put to the people of the State. We welcome the Bill and the referendum more broadly to reduce the waiting period that a separated couple must undergo before a couple may be granted a divorce. We recognise, as we did during the original divorce referendum in 1995, the reality that some marriages break down over time and the sad fact that this breakdown is sometimes irreparable. There are also other reasons. Article 41.3.2°, as it currently stands, is very restrictive and is not fair to those who seek to divorce. It creates even more hardship and difficulty in what can be an already difficult experience. The experience of the eighth amendment illustrates that it is unwise to specify complex social policies in the Constitution and that these matters should be governed by ordinary primary legislation passed by the Houses of the Oireachtas. We will give this Bill consideration in due course and we may seek to amend it as it progresses. However, I will not put the cart before the horse. I am willing to see the outcome of the referendum, which I hope will pass with a substantial majority.

There is a distinction to be drawn between contested and uncontested divorce. In uncontested cases, the requirement for a long separation period is likely to be unnecessary. However, where one spouse opposes the application, it is common practice in other common law jurisdictions that a period of separation would be considered proof that the marriage has broken down irreparably. The Minister informed my colleague, Deputy Jonathan O'Brien, that this would not be an issue but I remain unconvinced about this. If a referendum were to pass and a two-year waiting period were introduced, it strikes me that it will be arduous for a couple, for instance, in a case where the relationship is still amicable, if, after agreeing to file for a divorce and go their separate ways after six months, they would be required to wait a further 18 months to seek a formal separation. I am not stating that the two-year waiting period should be disregarded but, rather, I would like to open a discussion on whether it is necessary in the first place.

As I stated, we will examine the legislation carefully and the possibility distinguishing in legislation between uncontested and contested cases in the hope that any legislation would be cognisant of both types of cases and would not treat them as being the same. In those circumstances, the commitment and love between two people required to sustain a marriage is no longer present. It is simply inhumane to require these persons to continue to be bound by a legal partnership that both want to leave. The electorate agreed with this view and passed the divorce referendum in 1995. The Constitution's outright ban between 1937 and 1995 did not serve society well. It did not serve those who were legally trapped in marriages which they did not want to be part of either.

We recall the strong resistance to the proposed divorce referendum by some organisations which insisted that the introduction of divorce in Ireland would open the floodgates to marital breakdown. This has clearly not happened. There were already thousands of separated persons in this jurisdiction before divorce was introduced. The current waiting period is not acceptable. No one seriously considers that it should take grown adults four years to decide whether they want to divorce. What is the point in forcing people to wait a long time before they can divorce, especially when many of them form relationships and have children with others in the intervening years? We need to trust adults to make the best decisions for themselves, their families and relationships. On that basis, Sinn Féin is happy to support the Bill and will support the referendum in May.

I thank the Minister for bringing forward this proposed amendment to the Constitution. It is a change which is required. I will raise some points for consideration based on my experience of dealing with the family law courts. Some people have used the courts system to delay the process of separation and divorce. For instance, I am aware of one case which has been ongoing for 18 years. The initial matter was one of judicial separation. The response of the other party was to apply for an annulment and constantly move legal offices. The party then applied to the court on the basis that they were entitled to qualify for legal aid. The case was dealt with in the Circuit Court and was subject to judicial review in the Circuit Court. An appeal to the High Court was lost and it then went to the Supreme Court. There is now a third judicial review. The courts must have a mechanism to deal with this. It is unfair to the party on the other side and to the court system that a case can take such a long time when it is clear that a marriage has broken down and the parties want to go their separate ways.

In the case to which I refer, there is no finality 18 years later. I note that this legislation deals with a different issue, but I ask the Minister to look at the kind of complications I am talking about, namely, how the court system can be used in the wrong way and a person can benefit from that. That matter needs to be looked at, in particular in regard to judicial review and the situation whereby an initial application is made by one party and the other party then applies for an annulment. It is an issue about which I am very concerned. There is much undue delay in family law as a result of the process not being tied down.

Obviously, the right way, and the advice I would give to anyone who comes to me and says his or her marriage has broken down and he or she wants a separation or a divorce, is to go into mediation and try to come to a compromise and reach agreement. There are only two beneficiaries in judicial separation or divorce proceedings in the courts and those are the lawyers on both sides. I openly give that advice to people, but some people prefer to go down the road of court proceedings and that process needs to be tightened up. In reviewing this whole issue, the State solicitor's office, the Department and the Office of the Attorney General should look at the issues I have raised because they are of serious concern to me and it is important that the current situation not be allowed to continue. I welcome the proposal brought forward by the Minister and I hope that the electorate will vote for the required change.

I welcome the Minister to the House. I believe that my colleague and friend, Senator Norris, called a quorum in order to ensure that there was a sufficient number of Senators present for this important Bill. I am grateful to him for doing so because it enabled me to get here in time for the start of the debate.

On behalf of the Labour Party, I am delighted to welcome this important Bill and the practical and compassionate reform of the Constitution it proposes. Like other Senators, I acknowledge the work of the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in highlighting the need for this reform and taking the initiative on it. As Senators are aware, the amendment proposed in the Bill would, if passed, delete the first paragraph of the current text of Article 41.3.2° of the Constitution and the requirement that spouses must have lived apart for at least four out of the previous five years before seeking a divorce. Like Senator Ruane, I was struck by the argument of my colleague, Dr. David Kenny. Perhaps we ought to be bolder in seeking to amend the Constitution. It might have been preferable - I will not put it any more strongly than that at present - to have simply put forward an amendment in line with that on the eighth amendment last year which would enable the Oireachtas to make provision for dissolution of marriage without specifying particular aspects. I make that point somewhat tentatively because I very much support the current text of paragraph (iii) of the article, which requires that the court ensure that proper provision is made for spouses and children. That is an important text. Nevertheless, we should be able to provide in law for clean-break divorces, whether through legislation and the current text of the Constitution or through amending the Constitution. That need is increasingly pressing. I listened to the comments of Senator Colm Burke about delay of the court processes and so on. We should be able to provide for that issue.

I will return to the issue of the time limit and how we might amend that legislation. I am grateful that the Minister published the scheme of the Bill. It is very useful that he did so and it is important that people would know the consequences of a "Yes" vote. If the amendment passes on 24 May, we will have time to debate that Bill further. I and others may propose different time limits, possibly based on the time limits used in other European countries. For example, in some jurisdictions there may be a one-year limit proposed or, indeed, no waiting period or a six-month period where there is mutual consent. We could look at mechanisms other than the two out of the three previous years formula currently proposed in the scheme of the Bill.

On the referendum, I wish to address the track record of the Labour Party in driving social change on marriage. As Members are aware, the 1986 referendum driven by the Labour Party in coalition government with Fine Gael was lost in spite of the "Yes" side having an initial lead in the polls. Of course, retrospectively it seems that the referendum was lost largely due to fears about property division and adequate provision for dependent spouses. Following that defeat, the Judicial Separation and Family Law Reform Act 1989 dealt with some of the issues around property division and provision for spouses and children.

The second divorce referendum, held on 24 November 1995, was another intensely fought campaign. The Minister may have been less than bold in the proposal for the amendment because these referendum campaigns can be difficult and highly contested. Along with my colleagues in the Labour Party, I took an active role in the 1995 referendum. Of course, it was driven by the then Minister and member of the Labour Party, Mervyn Taylor, as well as activists in the Divorce Action Group and the Right to Remarry campaign which rightly focused on the need to ensure that people whose marriages had already broken down would be able to get a second chance, regularise their new relationships and provide adequately for any children of a successive relationship. Despite this very compassionate and persuasive message based on humanity, the fifteenth amendment of the Constitution was only very narrowly passed by 50.28% of the electorate, a figure etched in the memories of all those who campaigned at the time. There was a margin of only 9,114 votes, which is sometimes attributed to heavy rain in the west of Ireland on the day the referendum took place. I jest. It was an extremely tight margin. Of course, fears were stoked during the campaign by dire warnings from the "No" side that marital breakdown rates would escalate, dreadful slogans such as "Hello Divorce ... Bye Bye Daddy" and posters bearing messages such as "Divorce aborts marriage". I recently looked back at some of those dreadful slogans. Those fears and messages obviously contributed to the low margin of success in 1995 in spite of the fact that we had, of course, been making very strong arguments that legalising divorce simply recognised a reality and did not condone or encourage marital breakdown in any way.

Once the Family Law (Divorce) Act 1996 was put in place, many of us were concerned about the highly restrictive language in the Constitution which restricted the nature of the legislation. However, we acknowledged that the Act allows for no-fault divorce and that is welcome because other systems which earlier introduced divorce earlier based their laws on fault-based grounds. It is positive that Ireland did not so do. As many commentators and experts have pointed out, a fault-based system tends to place more strain on families in the event of break-up. Indeed, in spite of the dire predictions, our divorce rate has remained low since divorce was legalised, with a crude divorce rate of 0.7% compared with a European average of 1.9% when measured as divorce rates per 1,000 persons. Not only have marriage rates in Ireland remained strong, the number of those who can marry was expanded following the very welcome result in the 2015 referendum on marriage equality. The dire predictions did not come to pass.

There has been significant case law in the application of the Divorce Act, with clear rulings on the need to ensure that proper provision is made for dependent spouses and children and liberal interpretations of the term "living apart" to ensure that persons are not required to live in separate premises or households once they are effectively living apart, even if that is under the same roof. In spite of that liberal interpretation, commentators such as Carol Coulter and others have pointed out that the mandatory four-year period continues to present serious and unnecessary obstacles to couples whose marriages have broken down, that this period is one of the longest provided for in any jurisdiction and that it has forced many couples into a cumbersome two-stream legal procedures whereby they must seek a judicial separation in order to regularise their situation in an existing marital breakdown while waiting for the requisite four years to pass in order to be able to seek a divorce.

For those practical reasons as well as the reasons of compassion and humanity that applied in earlier referendums, this is a very important referendum and I will be campaigning for a "Yes" vote on 24 May along with my Labour Party colleagues, in keeping with our tradition of supporting important liberal social reforms. I welcome that the Minister has appointed Ms Justice Tara Burns to the commission and that the referendum date is set.

On marriage reform, I am very proud of two enacted reforms to marriage law which I was involved in initiating. One is the Civil Registration (Amendment) Act 2012 which enabled the conduct of legal secular wedding ceremonies by humanist celebrants. It has contributed greatly to the happiness of many couples and started life as a Private Member's Bill I brought forward in the Seanad.

The second reform was the passage just last year of section 45 of the Domestic Violence Act 2018, which put an end to child marriage. This had originally been initiated as a motion in the Seanad by Jillian van Turnhout and me.

Perhaps bolder reforms could be made but I very much welcome this reform as it is. I hope further amendments will be tabled to make more expansive reforms to Article 41, and in particular to delete the sexist language referring only to women and mothers as having duties in the home and to expand the definition of "family" beyond that based on marriage.

Those comments aside, I believe we need to pass this important amendment to respect the privacy of couples and to show the compassion that couples facing the trauma of marital breakdown so clearly deserve and require.

This is a very serious matter. We are talking about amending the Constitution, under which we all live. I intend to be of assistance, as far as I can be, to the Government in passing this speedily. I welcome the Bill and I will do everything I can to help it through. I was shocked to find that only two Members were present for this discussion of this amendment to the Constitution. Both of those Members came from the University of Dublin. There was not a single Member of either the Government or the Opposition here today. I find that shocking and regard it as a form of parliamentary dereliction. As a parliamentarian, I am greatly offended by this. Taking this into account, I believe the Minister's attacks on me, during the ringing of the quorum bell and subsequently on the record, were ignorant, ill-tempered and unjustified. I will leave it at that but those are my feelings.

The whole question of divorce was a contentious matter when it was introduced first in the 1920s and it occasioned one of the great speeches by another University of Dublin Senator - the late W. B. Yeats. I certainly support the idea of divorce. It does not mean I have any less respect for the institution of marriage. I do not see why it should not be easy to get a divorce. Why should we have the granny State interfering all the time? I would like the whole question of divorce removed entirely from the Constitution and dealt with only by legislation. That has been the position of the Anglican Church, to which I belong, for many years.

I welcome the Bill. It is a partial resolution of the situation. I will support it. I hope this will be of some comfort to the Minister who has so seriously misinterpreted me here today.

I thank those Senators who made constructive comments on the Bill. I acknowledge the support for the Government's referendum proposal. I particularly acknowledge the comments of Senators Ruane and Bacik on the issue of proper provision. We will have an opportunity on Committee Stage to debate these issues in more detail.

On the Second Stage and Committee Stage debates in the Dáil it was clear that many Deputies favoured retaining the proper provision requirement. This was also reflected in the outcome of a former consultation I undertook with Members of the Oireachtas and party groupings.

I omitted to check the Official Report so I say without 100% certainty - but I will check the Official Report between now and the completion of the debate - that I recall I said in the Dáil I do not believe that any referendum was ever carried in the State that was supported solely by the major Government party. Perhaps Senator Bacik will assist in this.

I saw the Minister's comment on the record in the Dáil. I believe he is correct.

We require a level of consensus here. I am keen to acknowledge the supporting comments of representatives of other parties and groupings. If we achieve consensus, then we can go forward to request the views of the people with an element of confidence that was not always evident in the context of referendum campaigns.

On the proper provision requirement being retained in the Constitution, I remind Senators that the LRC has included in its fifth programme of law reform an examination of the proper provision requirement for divorce and recognition of foreign divorces. The outcome of this examination will inform future proposals. I am not sure it would be prudent to propose an amendment to the proper provision requirement in advance of that examination by the LRC. In response to Senators Ruane and Bacik, it is my considered view at this stage that the remaining provisions in the Constitution are there for a very good reason, namely, the matter of the court order, the fact that an order will only be granted on the basis of there being no prospect of reconciliation and that proper provision be made for spouse and children.

At the heart of the proposal by Government is a desire to ease the burden on people whose marriages have broken down. Senator Bacik is correct when she says that Ireland has a very low divorce rate, which is very welcome as a fact. The Constitution's current requirement means that couples frequently go through the process of separation agreement or judicial separation before they can make an application for a divorce.

I was struck by Senator Colm Burke's comments on the matter of delay. He did not mean me to respond by way of comment on any individual case but I hope the issue he raised specifically could be addressed by the courts. These issues have been before the courts for many years. It would be unwise of me as the Minister to make a comment either way on the performance of the courts on issues that might be, or perhaps still are, before them. Perhaps there may be another avenue down which the Senator might traverse to seek a resolution.

I thank Senator Marshall for his comments and support. He used the word "reasonable" a number of times in his comments, and that was entirely appropriate. We want to act in a reasonable manner with this Bill. I also acknowledge the support of Senator Ó Donnghaile and his party.

I look forward to debating the matters further. I thank the Senators for their contributions. Subject to the order of the House, we may have an opportunity to discuss matters on Committee Stage later this week.

Cuireadh agus aontaíodh an cheist.
Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Thursday, 11 April 2019.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 7 p.m. until 10.30 a.m. on Wednesday, 10 April 2019.