Section 1 (1) states. "This Act may be cited as the Family Law (Divorce) Act, 1996". The Act covers a wide range of measures and updates the law on custody, pensions and various other elements of the Judicial Separation Act and the Family Law Act, 1994. However, it does not introduce provisions for counselling. Is that excluded under this title? What is the Minister's position on counselling? Section 1 (2) says that "The Act shall come into operation on the day that is 3 months after the date of its passing." Can the Minister explain why it will take three months after the passing of the Act for it to come into operation?
SECTION 1.
Question proposed: "That section 1 stand part of the Bill."
It is felt that a gap of three months would be appropriate to enable the necessary arrangements to be put in place in the court systems, etc. In getting that organised, it is usual to have a gap period in major new legislation providing for new legal procedures which have not existed there previously. Admittedly, similar procedures have existed in the context of the Judicial Separation Act but this is new legislation. Divorce jurisdiction is being introduced for the first time. Courts and court staff will need to organise their affairs and they are entitled to a reasonable period within which to do that.
Is the Minister confident it will be in place in three months?
It will have to be in place in three months, which is precisely the reason I am doing that. If I left it open, they might well take their time over it and there is, of course, pressure to introduce this legislation. The fact that the time is fixed in the Bill means they have no choice. They are obliged to do it and that is the best way to approach it.
In so far as the title is concerned, the purpose of this Bill is to give effect to the provision now in the Constitution allowing for a divorce jurisdiction. That is the primary purpose of the Bill. Therefore, the title is an appropriate one. Counselling is dealt with in sections 5 and 6 of the Bill in a similar manner to that provided for in the Family Law Act.
The Bill makes no additional provision for counselling but only for certification, which we will come to later. The Minister said: "The Act shall come into operation on the day that is 3 months after the date of its passing". When does the Minister expect it to come into operation? Committee Stage is in July, the Bill will come back to the House in October at the latest and Report Stage and the Seanad will come after that. Can the Minister tell us when he expects to be able to bring the Bill into effect, considering the three months gap after the completion of all Stages in the Dáil and the Seanad and that we are now on Committee Stage, which should give a fairly clear indication of when the Bill will be passed?
As I am sure Deputy Woods knows, it is always extremely difficult to predict when particular legislation will conclude all Stages through both Houses of the Oireachtas. I intend to process the Bill through both Houses with all possible practical speed. Having regard to the demand for the legislation, I will be asking for, and know I will receive, the usual level of co-operation and assistance from Deputy Woods and the Members opposite in attaining that objective. Speed is important. The people voted on this issue as far back as November. It is important that the will of the people be brought into being with all possible speed and that is my intention.
As Deputy Woods possibly knows counselling is dealt with on a non-statutory basis. This is not a counselling Bill; it is a divorce Bill. Counselling is in place and substantially increased funds have been provided by the present and previous Governments to radically extend and expand counselling services operated by the many counselling agencies, the largest of which is ACCORD. The future needs of the counselling agencies will be considered on a year on year basis.
We will discuss counselling under section 5 which deals with mediation, reconciliation and counselling.
The Minister is not making a statutory provision for counselling. I wanted him to make that clear and he has done so. He said this is a divorce Bill, not a counselling Bill. Counselling is part of the process, but I will not argue the point. I do not wish to pursue that matter further.
My second point relates to when the people can expect the legislation to be enacted. The Minister referred to various eventualities. The committee is acting with all speed and the Bill will be through Committee Stage in a matter of days. At this stage the Minister can say that certainly the Bill will be in operation by 1 April. How could he say otherwise?
If the Dáil resumes at the end of September, presumably the Bill can be through the Dáil and the Seanad by the end of October with 1 February as a commencement date for the Act. That gives the Government more than enough time. Could the Minister be more forthcoming because people are anxious to know when this Act is likely to come into effect?
Dr. Woods has the luxury of being able to indulge in all manner of presumptions and possibilities as to what might be and what could be. I do not have that luxury. I will process the legislation as quickly as possible and hope it will be completed as early as possible before the end of the year. However, everything depends on co-operation from the Opposition, the availability of Dáil and Seanad time and so on.
Deputy Woods purports to introduce a sinister note into the question of counselling which is quite unnecessary and totally inappropriate. The counselling provisions are already in place and working extremely well. The amount of money provided for the counselling agencies which operate that service has been hugely expanded in the last few years since I took over at the Department of Equality and Law Reform. Deputy Woods knows that process commenced during the previous Government but continued during this Government. The counselling and mediation agencies are well geared to handle the work that is necessary and will continue to be necessary on the passing of this Bill.
Is it not fair and reasonable to ask questions to determine the necessity of establishing counselling on a statutory basis? We are establishing a divorce procedure on a statutory basis and it legitimately calls into question the necessity for counselling and all the related areas to which Deputy Woods referred, not only today but previously. Once we accept that, surely there is validity in what he says about establishing counselling on a statutory basis. Part of the question to the Minister relates to the validity or otherwise of establishing counselling on a statutory basis as part of the overall package being proposed in the legislation.
I will have to suspend debate on counselling until we reach section 5 which directly refers to counselling, reconciliation and mediation. It would be more appropriate to debate the valid points raised by Deputy Fitzgerald at that stage of our deliberations and not in the course of the debate on the Short Title and commencement of the Bill. I ask Members to exercise restraint until we come to section 5 and appropriate amendments on the matters raised. Are there any other points on the Short Title and the commencement?
At 12 noon I received a note that amendments Nos. 2 and 3 which I had put down were adjudged to be out of order as they are not relevant to the provisions of the Bill as read a Second Time. Amendments Nos. 2 and 3 are very relevant to the issue of divorce as debated prior to the referendum.
The Deputy will accept that we are dealing with section 1.
Yes, and I am talking about the title and its extent.
With respect, you are talking about amendments Nos. 2 and 3 which have been ruled out of order. Can we deal with the section?
The Act may be cited as the Family Law (Divorce) Act, 1996. I am talking about that statement. One of the major issues which arose in advance of the referendum was support for families. This issue has been debated in the House and in committee. The Joint Committee put forward measures to improve the environment for families so there would not be the degree of breakdown which we have at present and would recognise and attempt to tackle the problems which lead to divorce. In that context I put down those two amendments. The first was to provide a special income tax allowance for——
In fairness Deputy, you cannot circumvent the Chair in this manner.
I am not going into detail.
You were discussing the amendments.
I am not going into detail.
Detail is subjective as far as the Deputy is concerned. I am not allowing debate on amendments we are not discussing and which you have accepted have been ruled out of order. We are dealing with the section.
I am referring to the note I got at 12 noon and which did not provide me with any notice since the meeting with the Minister began at 12 noon. This is not the way to conduct the business of the committee or the House. I am lodging an objection to the way in which that was done. I did not receive any notice and was not asked for my views or comments. I am being told that to make provision to avoiding situations which lead to divorce is not relevant to the Bill.
I will not go into the detail of the amendment. Its purpose was to deal with a situation where families are under pressure for financial reasons. This Bill deals with tackling finances subsequently, but we cannot be so blind as to not examine the causes of the problem.
I can deal with the matter on a later section which deals with the financial arrangements. I regard the problems and stresses which cause breakdowns, separation and divorce as fundamental to the discussion. In that context, I put this proposal to ease some of the stresses on the long-term unemployed. In many cases they experience marriage breakdown as well as the stress of their financial circumstances.
Amendment No. 3 seeks to deal with the pressures on women in the home. This relates to the pension provisions because the amendment deals with eligibility for pensions. One of the pressures on women who care for children in the home is their lack of eligibility for pensions. We should consider these issues. The amendments are ruled out of order given the Title of the Bill and I am left with no option but to raise the issues under other sections. These issues are relevant to the avoidance of divorce, marriage breakdown and separation. The pressures in the home are issues which may arise in counselling.
I wish to propose two measures to reduce such pressures and, thereby, help to reduce the number of marriage breakdowns, separations and divorces. The two proposals are excellent and would be helpful to families. I do not want a narrow technical divorce delivery Bill, which is what is suggested. When the Minister does not envisage any statutory provisions for counselling or other measures, it tends to narrow and legalise the provisions of the Bill. That is not the spirit in which we approached the referendum nor the way in which we co-operated with the Government. These issues must be dealt with in the legislation or parallel to it.
Question put and agreed to.
Sections 2 and 3 agreed to.
NEW SECTION.
I move amendment No. 1:
In page 8, before section 4, but in Part 1, to insert the following new section:
"4.—Section 32 of the Family Law Act, 1995, shall not apply to marriages solemnised between the 1st day of August and the 21st day of December, 1996.".
The Minister will be aware that a notice appeared in the newspapers advising people of the requirement under the Family Law Act, 1995, to give notice to the registrar of their intention to marry. The notice indicated that the Family Law Act, 1995, introduces new requirements for marriages to take place on or after 1 August 1996. Among them is that three months' notification of marriage is required and every person intending to marry must give the three months' written notification to the registrar of marriages of the district in which the marriage is to take place or, alternatively, get an exemption from the courts. This means, for example, that any person intending to marry on 1 August 1996 must have given notification on or before 1 May 1996.
Doubts were raised about the validity of marriages which take place in August, September and October of this year. The requirement under the Family Law Act, 1995, to give three months' notice to the registrar of marriages comes into effect on 1 August 1996. From then on every marriage that takes place will be void unless the three months' notice has been given. However, the Family Law Act, 1995, does not make specific provision for the giving of three months' notice by a person intending to marry or the receiving of that notice by the registrar before 1 August 1996. It makes provision for after 1 August. This gives rise to doubt.
It is expected that some 12,000 people will marrying during those three months. Can the Minister tell us how many people have given notice so far for those months? Our amendment is intended to remove all doubt. When this issue arose I spoke to the registrar, who said that the Attorney General and the Chief State Solicitor have given the view that the legal interpretation would be that the marriages involved would be valid. Therefore, the registrar does not envisage problems. However, the registrar's decision is based on the advice the Government received.
When we asked the Minister about this matter he told us he had raised the issue with the Attorney General, who indicated that in his opinion section 10 (1) (b) of the Interpretation Act, 1937, covers the technical situation which arises. However, the Interpretation Act, 1937, does not give retrospective effect to any legislation nor does it increase any powers given in legislation. Deputy Shatter raised this issue and published a Private Members' Bill to deal with it.
As an expert and a practitioner in the field, he felt doubt existed there and, consequently, introduced the Bill. Again, the response he received was similar to the response we received, that should the matter be contested in future in the courts, it is the Attorney General's opinion that the marriages in that period will be deemed valid.
There should not be any doubt about an issue like this which involves the introduction of a whole new system. The Minister should accept our amendment, or a preferred similar alternative, and put the issue beyond doubt.
Our amendment states:
Section 32 of the Family Law Act, 1995, shall not apply to marriages solemnised between the 1st day of August and the 21st day of December, 1996.
We went a little beyond the three months to allow a reasonable period for the kind of matter to which the Minister referred earlier when he said that you need to give the legal people and the administrative systems time to adjust to the new requirements and phase in the new measures. The same applies to ordinary people. They may need time to adjust. There was an advertisement in the newspapers and there may even be people who did not give notice in time and still wish to marry during that period. Have any such cases or problems of that nature arisen?
The simplest thing is to exempt that period and let the provision take effect after 21 December 1996. We do not want doubt in the year 2010 or 2020 about some marriages which were registered in this period. That is the issue. There is still a legal doubt in that area and the simplest thing is to remove all doubt. Then everybody can be happy with the situation in practice.
The effect of section 32 of the Family Law Act, 1995, relating to notice of marriage is that, unless special exemption has been obtained in accordance with the Act, a marriage shall not be valid unless the parties give three months' notice of their intention to marry. The section comes into operation on 1 August 1996 and in so far as marriages to be celebrated in the months of August, September and October are concerned, it means that notice must have been given in the corresponding months of May, June or July 1996 as the case may be, that is, in a period before the date that is being specified for operation of the section.
It was obviously not the intention of section 32 of the 1995 Act that no marriages can take place in August, September and October 1996 and if it had been intended that persons could not marry in those months, the legislation would have specifically provided for that.
The presumption on the rules of statutory interpretation is that the Oireachtas intended that couples are entitled to notify the registrar of their intention to marry and that the registrar should have power to receive such notices prior to commencement of section 32. The advice from the Attorney General is that the provisions of section 10 (1) (b) of the Interpretation Act, 1937, cover exactly the situation which arises in relation to those notices of marriage given prior to 1 August 1996.
The 1973 Act provision deals with the situation where an Act of the Oireachtas is expressed to come into operation on a day subsequent to the date of passing of such Act. It makes clear that if an Act confers a power, the exercise of which is necessary or expedient to enable the Act to have full force and effect immediately upon its coming into operation, such power may be exercised at any time after the passing of such Act.
By virtue of that provision and on the basis of ordinary rules of statutory interpretation, the Attorney General's view is that prior to 1 August couples are indeed authorised to notify registrars of their intention to marry and registrars have power to receive the notices so given. The view of the Attorney General, with which I agree, is that there is no necessity for amending legislation in this area. Couples who have notified or will notify registrars of their intention to marry can be assured that there are not legal difficulties in the operation of section 32 of the 1995 Act. I do not propose, therefore, to accept this unnecessary amendment.
The Minister quoted from the Interpretation Act, 1937, on which both he and the Attorney General rely. The difficulty which has been expressed to me about this is that it cannot have retrospective effect. The Minister just read part of section 10 (1) (b) of that Act. Section 10 (1), which is relatively short, states:
Where an Act of the Oireachtas or any particular enactment contained in any such Act is expressed to come into operation on a day subsequent to the date of the passing of such Act, the following provisions shall have effect, that is to say:—
(b) if such Act confers a power to make or do, for the purposes of such Act or such enactment (as the case may be), any instrument, act or thing the making or doing of which is necessary or expedient to enable such Act or enactment to have full force and effect immediately upon its coming into operation, such power may, subject to any restrictions imposed by such Act, be exercised at any time after the passing of such Act.
The argument which is made is that it cannot have retrospective effect. That is where the doubt arises. The Minister is asking us to take his advice from the Attorney General as being bona fides advice and, consequently, to leave the matter at that. The simplest thing is to put the matter beyond question so that there is no question of lawyers differing on the issue and the problem becoming one of debate between lawyers to be sorted out in the courts. Even if it ended up with the Attorney General winning the case in the courts, we should not get into that situation.
A number of measures have been put forward. The Minister may put forward an appropriate amendment to remove any doubt and we would be happy to go along with such an amendment.
Replying to a parliamentary question on 11 June in substitution for the Minister for Equality and Law Reform, the Minister for Finance, Deputy Quinn, stated in Volume 466, columns 1514-5, of the Official Report that the Attorney General had given this view and the Government had put these questions to him. He stated:
I understand the motivation behind the Deputy's question and his genuine concern. The advice available to the Department of Equality and Law Reform is that there is no need to amend the legislation the way the Deputy has suggested. In the light of his questions, however, I will bring this matter again to the attention of the Minister for Equality and Law Reform.
Has the Minister been informed of this discussion by the Minister for Finance? Has he again considered the position since then?
Yes, I was informed about it, but that is the clear opinion I have from the Attorney General. No amendment is required here. If any people found themselves in the position that they had not given the full notice they could apply to the court to reduce it under section 33. I am aware of a number of cases where applications to the courts were made under section 33 and were granted. I am not aware of any case where the court refused to exercise its power in that regard. I am satisfied, therefore, that on the advice I have the matter is in order.
Is the amendment being pressed?
Yes.
I was the first person to raise this issue some time ago. I raised it because it is a grey area. I do not believe that any lawyer, hand on heart, can say with absolute certainty how the courts would deal with this issue. A question may arise about the validity of a marriage celebrated, for example, in early August in circumstances where notices were given before the legislation came into force. I highlighted the fact that there could be a difficulty with regard to Church of Ireland marriages where notice was given in March or early April for a marriage that did not take place until August or September.
I do not wish to delay the committee in dwelling on the technicalities of this situation. The Minister is right in saying that if people do not give the notice required within the timespan provided by the Act they can make application to the courts. Some people will marry who could, not this year or next year but in some years time, discover if their marriages break down that there is a challenge as to whether they are truly married, based on the time frame difficulty that could arise with this legislation. I must emphasise the word "could"— it is not definite.
This amendment or a simple provision could be included in the Bill to expressly state that any notices given prior to 1 August, provided they were given in practical terms three months prior to marriage taking place, shall be regarded as valid for the purposes of the Family Law Act, 1995. This would remove doubt. I am not sure it is necessary to go as far as Deputy Woods seeks to go in the context of effectively postponing the operation of the legislation for a period of time, which is what the amendment does. There are certain technical difficulties in the way the amendment is phrased. It could give rise to the same difficulties in January or February of next year as could arise in August or September of this year.
If the Office of the Attorney General was always right, the State would never lose a case before the courts in which it is represented by the office. However, we lose cases because lawyers are not right about everything all of the time. There are grey areas in our legal system which are never clarified until there is a judicial pronouncement, sometimes by the Supreme Court.
There could be technical problems in incorporating this amendment, but I do not see why at some later stage in the Bill, under its miscellaneous provisions or on Report Stage, a simple amendment could not be made to remove any possibility of a doubt arising on this issue. No husband or wife in three, four or five years time, if their marriage breaks down, should be vulnerable to being a litigant in a nullity case where we can avoid it by dealing with this issue.
The implications of this may not fully understood in this context. When marriages breakdown we now have in place a series of measures — this Bill provides them in the context of divorce — to ensure that proper financial protection of dependent wives and children. When a decree of nullity is granted by the courts there are no financial protections or provisions that can be made for the former spouse. She would be regarded as a dependent wife in other circumstances.
The reality here is that as there would be a question mark — it is no more than that — over the validity of some of the marriages celebrated between August and October 1996. In years to come if some of those marriages run into difficulties a spouse trying to evade financial responsibilities will use the possibility of bringing a nullity case as a lever to try to force perhaps a dependent wife into settling financial issues and issues relating to the family home on a basis that does not give the protection she should get and on a basis that falls short of the type of protections we have legislated for.
It is not just a theoretical academic issue between lawyers as to whether this could arise or not. It could have practical implications for some people in years to come. Those implications could be there temporarily even if ultimately there is a court decision confirming that the Minister and the Attorney General are correct on the issue. They could arise because some people may not want to litigate sufficiently far for the courts to have to make such decisions. Some people may not be able to afford to litigate matters that far and they should not be put at financial risk by being required to do so.
In view of the fact that there is a question mark we should remove it. If we do not do it on Committee Stage — I am concerned about the form of this amendment — there is no reason we should not do it on Report Stage. It does not impugn anybody's judgement. To do so does not suggest that the Attorney General's advice is wrong or that the Minister is wrong. It is simply ensuring that this problem cannot be used as a weapon against a dependent wife whose marriage breaks down in years to come. We have a duty to do this and I see no reason why we should not proceed. It does not cost the State anything to do it and it should not be seen to cause any difficulty to the Minister to address this issue.
I cannot put the matter beyond what I have already said. I understand that the motivation and bona fides of Deputy Woods and Deputy Shatter are genuine. I have consulted in detail with the Attorney General on this subject. I must be guided by his advice, which I accept, that there is no necessity for amending legislation in this area and that the matter as it stands is perfectly well covered by the Interpretation Act and by the Family Law Act.
I am not aware of any difficulties having arisen in connection with the administration of the legislation. A number of people have made applications to the courts for exemptions and reduced time notice under section 33 and these have been granted. I am unable to accept the amendment.
Can the Minister indicate the number of people who have applied already and the numbers who have applied for exemptions?
I do not have those figures here.
Is it possible to obtain them this afternoon?
I do not know. We will make inquiries.
It is part of the process.
The Minister said that people have applied for exemptions. Presumably these are people who want to marry and have not served any notice within the three-month period. Are people who gave notices in practical terms of more than three months, but gave them before 1 August, applying for exemptions because of the question mark that arises?
From research I have undertaken it can be accurately estimated that between August and October approximately 5,000 to 6,000 marriages will be celebrated in the State. I presume the Minister is not suggesting the courts could cope with applications made at this stage for exemptions which would apply to all those marriages.
I am also curious about another aspect and I ask the Minister to clarify it. I understand the Family Law Act, 1995, does not become operative until 1 August 1996. If it does not become operative until then, the section which allows the courts to dispense with the necessary for three months' notice does not become operative before 1 August 1996. I understand the courts do not have jurisdiction to waive the necessity for the three months' prior notice because the provision in the legislation is not yet in force and will not come into effect until 1 August 1996. I am curious how anybody who is due to get married in August, September or October could have already applied to the courts for a waiver of the three months rule when the courts currently do not have jurisdiction to grant it because the legislation is not in force.
When the courts are giving decisions I assume they are aware of the law. If they are giving those decisions, they have come to the conclusion that they are entitled to do so by virtue of the Family Law Act and/or the interpretation Act. Such decisions have been given in a number of courts. This is the position and it is in order. We should be cautious about importing doubt when no doubt exists about the marriages taking place. They are in order and the Attorney General, who is the senior law officer in the State, confirmed that point to me. The courts are operating the exemption procedure under section 33. That is their function as courts under the Constitution. I cannot put the matter any further.
This is a matter of substantial concern. The Minister would not suggest the courts can currently make orders in separation cases as provided for in the area, for example, of life policies and pensions. The Minister would be of the view that the courts do not have power to make those orders until after 1 August this year as a result of the ministerial order bringing the legislation into force. If courts are granting exemptions before 1 August, I do not know from where their legal authority to do so comes. If that is happening, there is an extra layer of concern in this area.
I do not wish to be alarmist but getting married should be an enjoyable and straightforward occasion. All Members of the House agree with the change in the law to provide a cooling off period for people who decide to marry to ensure they do not unnecessarily rush into it and make ill judged decisions. In general, the approach now is that if one decides to marry, one must give three months' notice. However, that only applies from 1 August. If courts are getting orders at this stage, I do not know how specifically that can arise.
It is a further problem in this area which could have been avoided in the first place by bringing forward the provisions in the Act, which allow the court to exempt people from the measures relating to giving notice, to apply before the substantive validity issue of marriages becomes operative on 1 August. I did not intend to disagree or argue with the Minister on this matter. However, I am curious how courts can currently grant exemptions under a jurisdiction which does not vest in them until 1 August.
The Minister has repeatedly stated his claim is soundly based on advice from the Attorney General. I accept he should adhere to it in circumstances where a fundamental change is proposed. However, the proposed change is to remove any possibility of doubt. It is not a fundamental difference or change in the law.
I can understand the Minister's position where his advice from the Attorney General is that he cannot accept an amendment which involves fundamental change. However, if he cannot accept this amendment, I suggest he introduce an amendment on Report Stage after further consideration of the matter because a fundamental change is not proposed by either side. Perhaps this would help to expedite proceedings.
I asked the Minister for figures earlier and he said a number of applications for exemptions have been made to date. This is news to this side and it raises the issue of the advertising of such a major change. It was clearly advertised in the newspapers but, in terms of the figures provided, a relatively small percentage of the population reads newspapers all the time. Some people will not see the advertisements and this raises the matter of the initial stage of the introduction of the new measure in the context of people not having to go to court. Presumably people who applied to the courts had to take legal advice at some expense and had considerable concern about the matter.
From an administrative point of view, to simplify the position and put it beyond doubt, I intend to press the amendment. All Members want the issue put beyond doubt because marriages is too important and the upset it could cause people, not just in the short term but potentially in the long term, is too serious. The Minister was asked to introduce an amendment on Report Stage to meet our concerns but, as he will not do so, I intend to press the matter.
My firm advice is that there is no doubt about this matter. If my advice was that an amendment was necessary, I would have no hesitation introducing it. However, my advice is that there is no necessity for it. The introduction of the Family Law Act and the notice requirements were extensively advertised in the newspapers. The leaders of all the churches and all marriage registrars were informed. Church newsletters dealt with the matter and information about it was widely disseminated. It has presented no difficulty of which I am aware.
As I said, applications have been made to the courts and they have been granted. Deputy Shatter has difficulty understanding how that can do so. It is not a matter for me to interpret why it was so but I am aware that decisions were granted in some cases by the courts operating section 33. I presume they availed of the interpretation Act. The courts gave those decisions and they are entitled to do so because they are the courts of the land. The matter is fully in order. I checked it out carefully and in detail with the Attorney General.
This side has no option but to stand by the Minister. He has taken the best advice available to him from the Attorney General. That is his duty. The Attorney General is appointed to advise the Government and individual Ministers. If he is wrong on this issue, it has grave implications for him and his reputation as a lawyer. He is not infallible but he comes with a good reputation. We must stand by the Minister.
I am dismayed about how the debate has evolved today. I came to the meeting to process legislation in a civilised, democratic, speedy and effective manner. We are getting bogged down in this issue and creating a minefield for ourselves. If doubt is cast on the validity of marriages which take place between August and December, it could be exploited by lawyers to highlight an ambiguous area. We are trying to help people whose marriages have irretrievably broken down to regularise their position and to give them a second chance. There is not an ulterior motive; we are not trying to create ambiguity. I do not see this as a barrier to the enactment of divorce legislation or as a means of encouraging people to exploit ambiguity.
I hope we can process the Bill as speedily and as fairly as possible. If there is anything else we can do to improve the Bill, we should do it in a civilised way on Report Stage. There should be consensus on all aspects of this Bill, otherwise we could be here forever expounding points of law. We came here to help people, so we should process this Bill as quickly as possible.
I appreciate what the Deputy had said. Nevertheless, it is important aspect of the Bill on which Members from all sides of the House are anxious to make a contribution. It would be unfair of me to restrict the debate. I appreciate what the Deputy says about becoming bogged down in the techicalities but it is important to thrash out any ambiguity now and not at a later date in the courts.
The saying, "marry in haste, repent at leisure", is appropriate. Legislating in haste is a recipe for repenting at leisure. Deputy Shatter knows something about family law. The Minister read out the Attorney General's advice on this matter. I am not in a position to judge what he said, but when people, such as Deputy Shatter, cast doubt on this issue, there is nothing for the Minister or the Attorney General to lose by dispelling doubt except their pride. I cannot understand what the problem is, in taking the steps to dispel doubt.
Deputy Shatter has introduced legislation in the Houses of the Oireachtas and is a recognised expert on family law. That he has cast doubt on this issue indicates that if we pass this Bill, other lawyers will have the same doubts and could bring a case to court. Then we will wonder why we did not take the time to dispel all doubt when discussing this Bill. Deputy Shatter could find himself agreeing with other lawyers that there is a reasonable case to be answered.
It is incumbent on the Minister to dispel all reasonable doubt in this case. I cannot understand how the title, Attorney General, makes that person infallible. Deputy Shatter, the Attorney General and the Minister are eminent lawyers, but it seems there is a dispute between them. They should be able to come up with a formula on Report Stage which solves this dispute. We could then discuss the real issues in the Bill.
I do not want to prolong this debate but I am curious about the Minister's assertion that as far as he is concerned there is no doubt here. There is always doubt and disagreement in law. We only have to look at the history of Supreme Court judgments to see that. I am not a legal person but I listened with great interest to the debate. We should take the necessary steps to ensure there will not be a problem in the future. Deputy Shatter is an expert in this area and Deputy Woods has received legal advice which is different from that of the Minister. By including this provision, the Minister would show commonsense.
Deputy Woods is not proposing a fundamental change. Deputy Kemmy said we should be careful not to create doubt. However, doubt existed before we came here to discuss this Bill. If there is no doubt, why do people apply for exemptions? Deputy Woods is not promoting doubt but highlighting an existing doubt, which was also highlighted by Deputy Shatter both before and during this meeting. Deputy Woods is not putting this proposal forward as a cast iron resolution to the problem. The Minister's attitude baffles me. He has repeated that the Attorney General is satisfied there is no doubt, therefore he does not need to look at it again on Report Stage. I do not accept that. I support Deputy Woods' call to resolve the problem once and for all.
Is the amendment being pressed?
Yes.
Amendment put.
The Select Committee divided: Tá, 10; Níl, 12.
|
Tá |
|
|
Brown, John (Wexford). |
O'Keeffe, Edward. |
|
Fitzgerald, Liam. |
Power, Seán. |
|
Gregory, Tony. |
Smith, Michael. |
|
Kenneally, Brendan. |
Wallace, Dan. |
|
O'Donnell, Liz. |
Woods, Michael. |
|
Níl. |
|
|
Browne, John (Carlow-Kilkenny). |
McDowell, Derek. |
|
Costello, Joe. |
O'Keefe, Jim. |
|
Dukes, Alan. |
Shatter, Alan. |
|
Flanagan, Charles. |
Taylor, Mervyn. |
|
Harte, Paddy. |
Timmins, Godfrey. |
|
Kemmy, Jim. |
Walsh, Eamon. |
Amendment declared lost.
Amendment No. 2 is out of order for reasons which were conveyed earlier to Deputy Woods. I regret that notice of this ruling was late in arriving. Nevertheless, matters have been clarified. The amendment is out of order.
Amendment No. 2 not moved.
Amendment No. 3 is out of order because it is not relevant to the provisions of the Bill as read a Second Time.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 9, between lines 5 and 6, to insert the following subsections:
"(3) Subsequent to a grant of divorce, or of an order of judicial separation made under the Judicial Separation and Family Law Reform Act, 1989 if a non-custodial parent does not have or is not exercising a right of access to any child of the family, the parents of the non-custodial parent may apply to the court on notice to the custodial parent for an order granting a right of access to the child concerned for the purpose of the maintaining the child's relationships with his or her extended family and the court may where it thinks appropriate grant such access having regard to the provisions of the Act of 1964.
(4) Where the parents of the non-custodial parent are dead or do not reside in this jurisdiction or are otherwise unable to make application under subsection (3) of this section, such application may be made by a brother or sister of the non-custodial parent.".
In the course of the studies on children we carried out prior to the referendum, we found that many different issues affected them. It was helpful to them and maintained their stability if there was agreement between parents about divorce or separation. We discovered it is common in other jurisdictions to have an arrangements whereby grandparents have, in certain circumstances, the right of access to their grandchildren. The purpose of this amendment is to allow the courts to grant a right of access to grandparents, not necessarily as guardians, so that children can enjoy and maintain extended family relationships. This is not to interfere in any way in the relationship between parents and children. This particularly relates to a case where, for example, the father has absconded or is involved in drugs and his parents are anxious to maintain contact with their grandchild. It should be open to the courts to consider the provision of access and they should be able to allow it in those circumstances to allow for the fullness of family life that goes with extended relationships which are real, strong and supportive in Ireland and are not identified often enough by us. It is one of the great strengths.
We often think of children growing up, going to school and the difficulties they have owing to the shortage of money. We find it is almost impossible for them to manage on their parents' money. Their aunts, uncles and grandparents have helped out in different ways at different times. This is something which is real and common in Ireland. Therefore, the extended family can have a beneficial effect and be supportive of children. We came to this conclusion through the research we conducted about children in marital breakdown, separation and divorce situations. That is why we put forward this amendment. We ask the Minister to seriously consider it so the courts would have the right to grant access. We do not say that access should be available ab initio but that the courts have a right to determine in particular cases whether access should be allowed. We think it would be helpful if it were available.
The effect of this amendment would be to allow the parents, brother or sister of a separated or divorced person to apply in certain circumstances to the court for access to his or her child. Under the law as it stands, in section 11 of the Guardianship of Infants Act, 1964, the court may, on application to it by a parent of a child, give directions as it thinks proper regarding custody of and access to the child and the court, in deciding such matters, much regard the welfare of the child as the first and paramount consideration. My understanding is that section 11 may be broad enough to allow the court to make access orders in favour of a person who is not the child's parent but that power is not clear cut. However, the position is that any such orders are on the basis of application being made by one of the parents. The section cannot be activated by anyone else.
While provision to allow persons such as grandparents or aunts or uncles to apply in their own right to the court for access to a child appears desirable and may be in the interests of the child, the constitutional rights of the parents may make for some difficulties in framing appropriate provisions. A children Bill which will, among other matters, update the law on guardianship is in the course or being drafted on my initiative and the subject matter of this amendment is one of the matters being considered. The legal issues are being closely examined, having regard to the wide-ranging rights of parents under the Constitution. I am concerned that, if provision is to be made on the matter, it will fully protect the rights of both children and parents and will contain appropriate safeguards. I am not satisfied that the amendment as framed is legally or technically sound and regret, therefore, that I am not in a position to accept it.
We had a debate before the referendum and considered many of the issues. We want to take a new approach and do the utmost for children in these circumstances and for marriages allied to supporting them, removing tensions and avoiding conflicts where we can. We researched heavily the factors affecting children in that context. I want to see these reflected in this legislation. I am disappointed that family support measures are not reflected in the Bill, as they could be in many cases. Nevertheless, they can be pursued in parallel.
I am not talking about guardianship, because we do not want to get into the legalities of the adversarial system. We are talking about grandparents having access to children. That is what we talked about before the referendum and we agreed that in general terms it was a good thing. The Minister's reply was that this matter was being considered in a separate children's Bill. However, it is relevant to the steps taken in this Bill. I have had discussions with the Minister about a children's Bill but I have not received a practical response — people working in the area of adoption have had the same experience.
I will be introducing a children's Bill.
That might be helpful. This is a relatively simple amendment to the legislation to provide access and it does not infringe the Constitution. The Minister told us earlier that the courts are wise and knowledgeable about the the law and the Constitution, as presumably they will be about this subject. We are aiming for a family environment in the practical circumstances of the family courts, a change from what happened before. We should process these cases in a more humane way. In applying everything we discussed earlier we should not be too legalistic but try to provide the human supports which children need in these circumstances. The Minister should again look at this issue before Report Stage to see if he can come up with a suitable amendment. Having examined what we discussed and what we found in our research, I decided we should be honest and consistent in our approach to the introduction of divorce legislation and new custody arrangements. I ask the Minister to consider the matter further.
I cannot consider it for Report Stage of this Bill but I will consider it for the forthcoming children's Bill. I understand what Deputy Woods is saying and I have a good measure of sympathy with him on this issue. However, we must look carefully at the constitutional provisions specifically dealing with the rights of parents and ensure that we do not infringe them. Consequently, any dealings on this subject must be framed in the context of those provisions. I sympathise with the point so ably made by Deputy Woods and we are considering it carefully in the context of the children's Bill.
I will withdraw the amendment but consider it again before Report Stage. I thank the Minister for his comments.
Deputy Wood's proposal is to allow grandparents and others access to the children but it does not say whether the non-custodial parent accepts or opposes that access. What provision of the Constitution does the Minister feel will cause problems for this proposal to allow grandparents access to their grandchildren? The Constitution is written in layman's terms, therefore it only lays down broad principles which are balanced and it does not seem to give parents absolute rights. What constitutional provision does the Minister think gives absolute rights to parents, even over their own parents, who by definition must be parents themselves?
Article 41, dealing with the family.
Which paragraph?
I do not have a copy of the Constitution with me but we have examined this matter in the context of the constitutional provisions and it presents a problem. Giving this right to grandparents and others is not as straightforward as it might appear. Within that context I am advised that the family vests rights in the parents, who are the key people where the family and the children are concerned. If one parent supports or brings the application it is open to the court, under section 11 of the existing legislation, to make provision for access by an outside person if it is in the interests of the child. That requires the consent of the non-custodial parents and the application must be brought by that parent. The thrust of Deputy Wood's amendment, with which I have some sympathy, is that the consent of the non-custodial parent is not necessary. In that case one must look carefully at cutting across the parental provisions in Article 41. I do not suggest it cannot be done but one must put it in context and frame it carefully, which we are doing in drawing up the children's Bill.
Amendment, by leave, withdrawn.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.
Question proposed: "That section 4 stand part of the Bill."
Section 4 clearly specifies the grounds on which the marriage may be dissolved by the courts. The three core requirements are, that a couple must be living apart prior to the commencement of proceedings, there must be no reasonable prospect or reconciliation and finally, such provision as the court considers proper having regard to the circumstances will be made for the spouses and any independent members of the family. At first glance, the requirement for a minimum of four years separation prior to commencement of divorce proceedings seems to offer some degree of protection. However, on closer examination, it becomes increasingly obvious that the provision is open to abuse. For example, if a couple who have been married for four years but were living together for most of all of that period decide to get divorced, irrespective of any children in the marriage, what mechanism can stop them colluding to overcome the "living apart" requirement with the minimum effort?
Neither is the situation in this regard clear cut in the case of a contested divorce. An agreement under oath on the matter of living apart is often likely to come down to obliging the court to accept one person's word against that of another. Therefore, the "living apart" requirement is almost certain to be a cause of both difficulty and conflict in the legal processing of divorce cases and at the very least requires further clarification.
In relation to the second requirement the need to show there is no reasonable prospect of reconciliation seems equally vague and unsatisfactory. While clearly well intentioned, in practical terms can we expect this clause to be of any value when one partner is determined to follow the divorce proceedings through to conclusion no matter how much the respondent may desire to enter wholeheartedly into the reconciliation process? Such a positive attitude will have little if any currency in the face of a cynical application for divorce. To state otherwise would be flying in the face of reality.
A close examination of the third and final requirement leads to a mixed interpretation. It must be acknowledged that the provision comprehensively addresses the matter of material well-being in cases where the applicant has significant financial resources. However, many applicants for divorce will be from middle, lower middle or lower socio-economic backgrounds whose families are likely to be totally dependent on the State. In such instances, the financial resources, if any, of the family are likely to be exhausted by legal costs. While the various financial provisions seem eminently fair and reasonable in many instances, they are likely to have little or no relevance for the majority of divorce cases which will be processed on the courts.
The net effect of the weakness of these requirements is likely to be that any determined partner will be in a position to force a divorce irrespective of the wishes of the other spouse. As a result we are certain to see an increasing number of individuals being divorced against their wishes. In such cases it is almost inevitable that other family members, especially children, will suffer from the bitter after effects of a contested divorce. Could the Minister clarify these points?
Deputy Wallace's comments are a rehash of the debate we had at length during the divorce referendum. These terms are part of the Irish Constitution. They can be looked at, but what is being implemented here is now written in Bunreacht na hÉireann. I do not agree with Deputy Wallace in the implication he draws from those provisions of the Constitution. In relation to the four year period, he spoke about "colluding". Collusion is always possible in any court proceedings. If a person or two persons together are prepared to perjure themselves, undesirable consequences will follow. I am not saying that does not happen but the courts are experienced in dealing with witnesses. There may be a conflict of evidence as Deputy Wallace rightly point out. It is something that happens in all court cases. Witnesses are examined and cross-examined. Judges are reasonably skilled, experienced and professional in assessing the weight to be attached to someone's evidence and how they respond to questions. The courts give their decision having heard all the evidence from all the witnesses.
The third clause of the constitution, which deals with proper provision in the circumstances, is carefully worded and constructed. Obviously, every case is different. A person who cannot afford to cover the legal costs from his own resources may obtain legal aid from one of the effective and well funded law centres in operation throughout the country. The courts will make such orders as are appropriate in the circumstances. The situation will essentially be very little different, from what pertains now when marriages break up. When these cases reach the courts one is not talking about a current situation. These are events that happened years ago. Financial arrangements will have been in place for that period and the court will examine those difficulties. Of course there are financial difficulties caused by marriage break-up — that is the case at present — and they will be addressed on a case by case basis when divorce applications come before the court.
For most people sections 4 and 5 will be defining in how this legislation will operate. There is always the difficulty — as the Minister pointed out, there was long debate on this — when lay people try to understand lawyers' language. What one person might take out of a saying might not be the lawyers' interpretation. I am here as a lay person representing lay people. The section states that the court "may" . . . .grant a decree of divorce. Presumably that also means the court could refuse to grant dissolution of the marriage. In addition we are told that the court is satisfied that——
(a) 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,
Unfortunately in this case, and it is one of the many matters we should have dealt with before getting to this point, my understanding is that under the Judicial Separation and Family Law Reform Act, 1989, we are still discussing an adversarial system of family courts. If, as I understand happens in judicial separation cases, both spouses state that they have been separated for the appropriate time and their barristers do not contest that but the court has reason to doubt them, will the court try to verify that through making an independent inquiry into whether section 4 (1) has been complied with? It is a reasonable question on which the public want to be reassured. Does the court have an inquisitorial role or is it sufficient for one spouse to say they have been separated and the other not to contradict that statement?
We will deal with section 4 (1) (b), the question of reconciliation, under section 5 because that operates through the system. Section 4 (1) (c) deals with children who could be from five to 22 years old and dependent on their parents. If they do not want the divorce granted, can or will there be an obligation on the court to inquire independently into the views of the children? If the children are opposed to a divorce could a court refuse to grant it on the basis? It only says "may", it does not say the court has to. Am I reading this incorrectly?
Since the people have voted on the referendum and we now have this in the Constitution, can we do anything about it now or do we need another referendum?
No, I am seeking clarification.
Carlow-Kilkenny): The Minister has answered the question of people going to court and swearing they have lived apart for four years. Human nature being what it is, people cannot be prevented from swearing untruthfully if they wish. They can say they have been living apart if both agree to it, unless there is conflicting evidence which the courts will have to weight up.
A case is heard in camera.
Carlow-Kilkenny): It is not easy to picture a happy marriage where the spouses agree to do that. This will only happen where a marriage has broken down and the couple want a divorce. If both agree, the judge would certainly have difficulty in determining that they were not living apart. One is at the mercy of people respecting the question of taking an oath and of people agreeing to tell lies. A court would have to deal with this as with any other case with conflicting evidence. The court will have to decide what is true.
Deputy Wallace mentioned one party in the marriage not being willing to reconcile. Surely that is why marriages break down. It often happens that one partner is anxious to keep a marriage together but the other is not. Divorce would only give a court appearance to have that position regularised. If both are anxious to have reconciliation there is a chance they will not divorce. Marriages usually break up when one partner does not want reconciliation. It is not easy to anticipate what will happen in court, much depends on how they behave and the court will have to react to that.
The Minister's comments surprised me when he referred to a rehash. We are on Committee Stage to tease out points and copperfasten legislation. Is there concern about that? The Minister does not seem to be happy with it. There was much comment on counselling prior to the referendum — he is on record as referring to it — and he referred to it this morning when taking issue with Deputy Woods. There was much talk of counselling but all the counselling provided in this country is voluntary. We are making repeated representations for financial assistance for the areas providing that service. Is it not right to put that on a statutory basis? The situation outlined this morning by Deputy Woods was completely turned around by the Minister. Everybody, in the Dáil and outside, mentioned the assistance we were supposed to give families. The same thing happened with a previous referendum but it was forgotten afterwards. We are here to tease out the legislation. I made valid points because if there are areas we can tighten up we should do so. The attitude of the Minister is that we are rehashing. Is there some problem with dealing with this? Are we in a rush to get it off the agenda as quickly as we can?
There is no question of being in a rush to get it off the agenda. People voted in a referendum. Let us not lose sight of the fact that a referendum took place in this country and the people gave their sovereign decision. They enacted the three decisions, a, b and c. They are now constitutional provisions.
We accept that but we are here to tease out the legislation.
Deputy Ó Cuív wants clarification of certain points. That is very fair and I will deal with that. Deputy Wallace seemed annoyed when I pointed out that those provisions are constitutional provisions that the people voted to enact. I have no problem with any Deputy asking for clarification of what some of these expressions mean or how they will work, although they were dealt with exhaustively at the time of the referendum.
We will agree to differ on that.
We now have a new situation.
They were dealt with exhaustively in my extended conduct of the debate during the referendum campaign and I answered questions in public and private meetings up and down the country.
The question of counselling was raised. I do not know what Deputy Wallace is suggesting. The money for counselling has been substantially increased. Does he know how much my Department is providing this year to aid the counselling organisations who are doing a magnificent job? As a result of the increased funding that this Government, and the previous one, provided for them they have been able to substantially extend, expand and professionalise their service. They are doing a wonderful job and I pay tribute to all those organisations who do that work. We should not say anything that casts any reflection on that and I have no doubt that future Governments will ensure that funding continues. As long as I am responsible for counselling services, I will do my utmost to ensure that the funding continues.
Deputy Ó Cuív raised some valid and interesting points. He queried the word "may"; it means what is says. There is no obligation on the court to grant the decree. First, the court has to be satisfied that the three conditions have been complied with. The fact that evidence was given by a party, or both parties, does not necessarily mean that the court would be satisfied that those events had happened. I suppose that would apply in most cases, but if a court, having heard all the evidence that was offered, was not satisfied and came to the conclusion that there was a "ready-up" going on, then it would have to say it was not satisfied that the conditions had been met and, therefore, would not grant the divorce.
The court would not have an inquisitorial role. Our courts do not operate that system but the court could say that having heard the evidence it was not satisfied that the conditions had been complied with and, therefore, would not grant the decree of divorce. It might adjourn the case or leave it open to those involved to bring further evidence or do further things that perhaps might satisfy it, in which case it would think about the matter again. Unless the court was satisfied that each of those conditions had been complied with it could not grant the decree.
Why are we hell bent on sticking to systems of law because they were there in the past or were inherited from the British? Other jurisdictions have different systems. This is a clear case that a more inquisitorial system, rather than the adversarial system, is called for because of the the nature of what we are talking about, particularly because there are innocent third parties involved — children — whose interests have to be protected. It is strange that we are not willing to write into this legislation that the court would have to make inquiries to satisfy itself, irrespective of the testimony of the couple, that the conditions had been complied with. This is a reasonable provision. Otherwise we are leaving it too open. We know how good we are at going through matters of form and, with no disrespect to people, it is not beyond the bounds of possibility that where couples want divorce in a fit of pique they will be willing to say that they were separated for a time for which they were not. We should not leave ourselves hostage to furtune and the good sense of judges; we should require them to inquire on those issues. Perhaps, the Minister will explain what the reluctance is to do this because all he is doing is making sure that the constitutional provisions are not only adhered to the letter of some minimalist law, but would be adhered to fully in their spirit which I am sure the majority of the people would like us to do as legislators. The Minister keeps coming back to the Constitution which sets out the framework for the law but it was not meant to be the law. It is extraordinary that the constitutional provision is becoming the law in this case and that there is no fleshing out in the law to ensure that the operation of the constitutional provision and its spirit are complied with.
We must move on.
No, we have not exhausted this. I have raised questions about children which have not been answered. I do not see what the rush is. Many things have to be teased out here. This is the most crucial part of the Bill. If this Bill is passed and is flawed, there will be divorce on demand. All the provisions which we were told were carefully put in are being dismantled by the Minister in his unwillingness to build around them to ensure that there is full compliance with the constitutional provisions. Having accepted the decision of the referendum, I want to ensure we get what the people were told they were getting and not a version which, as Daniel O'Connell would have said, "you could drive a coach of four through." Some of us wonder if that was the intention because there is a total unwillingness to copperfasten this.
I am satisfied that the points I have raised are valid and are relevant to the legislation, irrespective of the Minister's quoting the Constitution. I have no difficulty with that and am sincere in making these points. I was not being critical of the counselling services. I was making the point that the Minister was asked this morning to put it on a statutory basis and he did not accept that. There is no point in telling Deputy Woods that the road he was on was not correct. We have excellent counselling services and I am aware of them as I am in close contact with them on a daily basis. We have repeatedly come back looking for resources. I acknowledge that the Minister has given resources but we will need much more. Putting that on a statutory basis would not have been difficult.
I am satisfied that the section is sound and reflects what the people voted for in the Constitution. Deputy Ó Cuív raised the question of the consent of children to the divorce. This is not provided for in the constitutional amendment. The conditions are set out in section 4 reflecting the terms of the amendment and the consent of children is not required for the granting of a decree of divorce.
The Government took the rather unusual step of publishing this Bill in advance of the referendum. The people were told if they voted yes in the referendum, this Bill would be introduced. It was not a question of generality. The specifics of this Bill and explanatory documentation were put before them; they were given that commitment.
They voted "yes" and consequently the Government is taking the only possible step by fulfilling its commitment to the people that if they voted "yes" this Bill would be introduced.
The people did not vote for a Bill; they voted for a constitutional amendment. There is nothing to preclude the Oireachtas from introducing or amending any legislation as it sees fit within the terms of that constitutional amendment. The Minister may believe that is something we cannot do, but he cannot make that decision for Oireachtas Éireann although the Government probably has the votes to push it through.
It was made clear to the people.
It was not made clear to the people. The people cannot presume what Oireachtas Éireann will do. They can only know what a Government will propose to the Oireachtas. Otherwise, it would be a nonsense to even bother passing this Bill through Parliament. We might as well just rubber stamp it and go home. It is nonsense to suggest to us today that we cannot even discuss this Bill because the people supposedly voted for it.
The people did not vote for a Bill; they voted on a constitutional amendment. We accept that and are trying to get down to the Committee Stage of this Bill and tease out the legislation to ensure it operates in the way the people were told it would operate. We want to ensure that four years will mean four years, and that the protection of children will mean the protection of children.
The Minister said where children do not want the divorce, a decree could still be given. I accept that, but if a judge decides it is not in the interests of the party may he refuse to give it? The section provides that the decree may be granted once certain requirements are met, but it does not say that it must be granted. If, having heard the evidence, a judge decided that the best interest was not served by granting the decree, can he refuse to grant it? It is a simple question.
Yes.
If the judge can refuse, what provision is there to ensure the fullest information and all relevant facts are available to the judge to enable him to make an informed decision? Will he be required to inquire, through independent psychologists or others, as to the views of people who will be directly affected by the divorce? Will this be at the discretion of the courts, without obligation to examine those views?
Deputy Ó Cuív is asking whether the entire legal system should be changed from the current adversarial system to an inquisitorial system?
Yes, in these cases.
That is not proposed. It is a major issue requiring debate and serious consideration. I would not favour it, but it is not being considered at present.
Could this Bill provide that before a decision is made in such cases the court, through the appointment of an independent person, will have to inquire into the effects on and attitudes of dependent children? It could be a requirement that they conduct that inquiry independently of the parents. We know what happens in these cases. Each parent wants the child to say something different and the child becomes "piggy in the middle".
The court should be obliged to get the information and then, within the terms of the Constitution, make its decision. Where there are dependent children, the court should appoint independent people to inquire into their views, circumstances and so on. There would then be independent evidence as to the likely effect on the children of the marriage. Can this Bill be amended on Report Stage to ensure that courts conduct this inquiry as part of the proceedings? This would ensure that children are not caught in the middle of divorce proceedings, without an independent assessment of the impact on them.
Does Deputy Woods have a mutiny among the troops?
There is no mutiny. We do not oppose this section; we are just clarifying it. Any impression that there is a mutiny is unfair. We accept the decision of the people, but are teasing out certain aspects of it. We are entitled to do that. If that does not suit the Minister——
It suits the Minister.
I raised these questions before the referendum because this was one of the flaws I saw in the proposals. I thought the Bill was weak and I still think it is weak.
Section 4 is one of the kernel sections of the Bill. It was published before the referendum so people would have a clear indication of what was intended. We are now in the process of finalising it. As far as I am concerned, we could finalise it within the context of the constitutional amendment.
This is a particularly important section. As Deputy Wallace and Deputy Ó Cuív have highlighted, children are central to these discussions. when people voted in the referendum they were particularly concerned about marriages where there were children. They were concerned that legislative arrangements should provide good and adequate cover for the children and for a good representation of the position of children.
A number of my amendments to this section were ruled out of order. While I cannot move them, they related to this discussion. The section is faithful to the constitutional amendment. Paragraph iii of the amendment states:
such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law,
We were so concerned about the position of children vis-�-vis this legislation that we did a certain amount of research in the area. We looked particularly at the protection of children. The conclusions from the research were that in the first one to three years during marital conflict, through separation and — or divorce and remarriage children can suffer significant emotional and psychological harm. In the long term some children suffered serious social disadvantage characterised by poorer education and career achievement and a predisposition to marital disharmony.
Suffice it to say that the welfare of the children must be given due consideration and it must be taken into account in the legislation. It is for that reason we have proposed the concept of a commissioner for children. We mentioned it in the lead up to the referendum, as the Minister is aware, and we indicated that in order to ensure adequate protection for children in practice there must be a statutory officer whose job it would be to ensure the interests of children are vindicated by the courts in disputes between the parents.
Thus we proposed that there would be a commissioner for children attached to the courts who would be responsible for highlighting to parents the needs of children in situations of marriage breakdown and divorce and to press the needs of children in court where necessary. It would also be helpful if parents had to go to an information session on the effects on children of the marriage breakdown and divorce and also the potential costs of separation and divorce.
We highlighted that children are greatly at risk in situations of marriage breakdown, separation and divorce. They are likely to suffer most where a marriage breaks down. The loss from their point of view can result in long-term social, financial, emotional or career damage. We want to try, in so far as possible, to forestall and avoid that loss.
Our adversarial courts system to which Deputy Jim O'Keeffe referred often results in parents fighting one another on all the issues. In that bilateral conflict the children's interests can be overlooked by the parents in their desire to pursue the personal conflict. In some cases — it is not a general phenomenon — their interests would require separate representation. This is the reason we suggest there should be a statutory commissioner who would expose the spouses to a compulsory information session on the potential damage to the children and the ways of avoiding the damaging results of the conflict between the parents. We also suggest the spouses must produce a certificate to show they have participated in the session.
Furthermore, the commissioner may also have a representative role whereby the court brings in the commissioner because the children's interests are not being catered for. I would envisage it being necessary only in a proportion of cases to ensure the interests of the children are directly represented and the commissioner would be called upon to do so. The commissioner would be——
The Deputy is dealing with section 5 and the amendments thereto. We have not yet completed the discussion on section 4.
It comes between the two. Section 4 deals with the grant of a decree of divorce and the custody of children etc. We are talking about the other elements that affect the children. We can discuss it now or under section 5. It only needs to be discussed once.
As long as the Deputy is prepared to discuss it only once. He has stretched it a fair amount.
Not really. I am sincere and serious about this. There was a serious referendum to which I gave my support on the understanding that the Legislature would deliver on what we talked about at that time. I will not go over that because I want to go forward to do what we can now. A great deal depends on us. This is our opportunity to put to the Minister what we believe to be necessary to implement the constitutional amendment.
I think I have been brief on this issue; indeed, I have not done the issue justice. This is a particularly important issue. The Minister may believe he can deal it in another way and I would be interested to hear it. Whether I hear from him on section 4 or section 5, both of which relate to children, I do not mind. However, I want the committee to discuss the matter. I would not feel I was doing my job if I did not ensure it was discussed.
The commissioner could also be given a role as a facilitator. This relates to the concept involved. It is linked to what Deputy Dan Wallace and Deputy Ó Cuív were talking about earlier. There is great concern about the position of children and we need to examine how we can deal with it. My amendment proposed that there would be a commissioner for children to ensure the parents were informed of the effects on children of marital disharmony and breakdown, separation and divorce, that persons applying for relief under this legislation should be obliged to attend information sessions conducted by the commissioner to ensure they were aware of the implications for children and, furthermore, if a judge was satisfied that the physical, moral, emotional, educational and psychological welfare of any child was not being adequately served by the parties, the judge could make an order joining the commissioner for children in the cases. The commissioner should also have available to him or her professional advisers and counsellors.
This is the means we wish to use to approach the issue of providing support, protection and advice. Deputy Ó Cuív suggested that if we could move away from the adversarial system there would be a better chance of getting a hearing of the implications for the children.
However, we need to do something about what whole area. We proposed one way of doing it and I would like to hear what the Minister proposes in that regard. It is a matter about which we feel strongly. The amendment has been ruled out because it would involve a charge on the Exchequer. The Minister and the Government can create any charge on the Exchequer but the Opposition cannot.
That was the case in the Deputy's time.
If Fianna Fáil was in Government now, there would be a commissioner for children. We have promised that if the Government does not provide one, we will.
Amendments which incurred extra costs were always ruled out.
I ask Deputies to be reasonable having regard to the fact that there are important issues at stake. Members of the committee have reasonable questions to put to the Minister. We are dealing with amendments which Deputy Woods admits have been ruled out of order. He knows the procedure as well as any other Member of the committee.
Let us be clear about this, Chairman, when an amendment is ruled out of order it means it cannot be moved. One can discuss the issues when discussing the section.
On the section, but——
That is what we are talking about. Section 4 also deals with the custody, etc., of the children. It deals in section 4 (1) (c) with the basic point here, which is "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,". I am taking about the provisions made for members of the family who are children and dependants. As I said, I do not mind whether we discuss the matter on section 4 or section 5, but it is part of the what the basic constitutional amendment was about, making arrangements for any members of the family. That is why I am saying that, as far as the children are concerned, it will be necessary to make special arrangements and not just roll along with what has been there in the past. We do not believe it is adequate.
It may well be that the Minister may say he will plan to do these things with parallel legislation and not have a statutory commissioner. We believe there should be a statutory commissioner. He may say he wants to bring these kinds of provisions into his proposed children's Bill. We would like to hear from the Minister in any event on that matter.
I was going to intervene earlier to say that Deputy Ó Cuív seemed remarkably cross about everything. One thing he said was particularly alarming and out of touch with reality. When people's marriages break down they go through a great deal of trauma and difficulty and when they have been living apart for four years or longer they have already suffered a great deal. He seemed to suggest that we should have some sort of grand inquisition in place whereby anyone who comes to court saying they have been separated for four years should be subjected to an independent private investigation of their background organised through the courts system.
I appreciate that Deputy Ó Cuív did not favour this constitutional change, and he was entitled to hold that view. However that is all water under the bridge, a decision has been made in a referendum and it must be respected. I do not understand why he seems to think that people whose marriages have broken down should be singled out in some way to be dealt with through a different type of judicial and courts system to that which exists at present to deal with the civil and criminal justice. He suggests that our courts should perhaps treat people whose marriages have broken down in a more vigorous investigative way than we treat people brought before our courts on criminal prosecutions. It is quite outrageous and it goes well beyond anything required in this area.
We have not suggested that the courts need to adopt such an approach in circumstances where they grant separation decrees. Over the years, I cannot recollect Deputy Ó Cuív ever making a single comment to suggest that when somebody seeks a separation decree there should be some sort of court inquisitorial process to determine the truthfulness of what both a husband and a wife might tell the court. Judges determine whether what is being said is truthful. Does Deputy Ó Cuív feel people should be subjected to some sort of judicial inquisition merely by virtue of the fact that they want to remarry after an unhappy marriage? Much of what he said earlier in a profoundly cross way is not hugely helpful. In dealing with the grounds for divorce the issue was set before the people and it has been determined in a referendum. There may be aspects which some of us do not like and some of us might have done it differently but the decision has been made.
Clearly, section 4 reflects the constitutional provision. It was never suggested at any time during the referendum by those who advocated support for constitutional change — in fairness, it was never suggested by Deputy Woods or on behalf of the Fianna Fáil Party — that the courts should exercise an inquisitorial role and subject husbands and wives of broken marriages to an inquisitorial investigation. It is quite extraordinary that pressure should be put on the Minister to change the Bill to provide for such a system.
The concerns Deputy Woods voices about children and the effect of marriage breakdown on them is a concern which arises not as a result of divorce but from a genuine recognition that marriage breakdown impacts on children. They are different ways of dealing with that problem. Personally, I do not see the purpose of a commissioner such as Deputy Woods suggests. Various Governments, include those in which Deputy Woods's party was involved, have not adequately addressed that issue, which requires, in so far as the courts require assistance in determining issues relating to the welfare of children when marriages break down though separation or divorce, a better back-up welfare service than exists at present. The courts need the resources and professional personnel to ensure the provision of welfare officers who can carry out family assessments where they are required. The recent report on the need to change the courts dealing with family law made that quite clear. It was an area grossly ignored by the Fianna Fáil Party throughout its period in Government over the past ten years, which the Government has not yet faced up to. No doubt the courts need better back-up services to deal with family law which would facilitate people whose marriages are in difficulties and have collapsed where there are disputes relating to children and where the courts require expert assistance. However, we should not subject the casualties of broken marriages to some form of juridical inquisition simply because they want the courts to recognise their marriages have collapsed, they want the entitlement to remarry at some stage in the future and want to draw the curtain on what has been an unhappy experience.
I will try to keep smiling this time. What annoyed me was the unwillingness at this stage to tease out the matter and the bland statement that the people voted for this Bill. They did not; they voted for a constitutional amendment. The Supreme Court said that we cannot read the mind of the people. Perhaps the people felt the Bill was totally inadequate but that the constitutional amendment was totally adequate. Article 41, section 3, subsection 2thiv. of the Constitution states: "iv. any further conditions prescribed by law are complied with". The constitutional amendment is the only measure people voted on. As legislators we cannot know whether people considered the law, read the law or had any knowledge of the proposed law in casting their vote. They voted on the constitutional amendment and it provides for further conditions.
It was clever of Deputy Shatter to make play with the word "inquisitorial". Everybody has heard of the Spanish Inquisition. It is one of the terms in common usage in the English language. However, I used the word "inquisitorial" because my understanding from legal sources is that this is how one describes the system where the court makes inquiries and makes a decision, which is not the case under our adversarial system. The aspect I want the courts to inquire on and make decisions on is living apart. I will return to the aspect of children later.
People practising in family law have advised me that there are difficulties with the present system. Sometimes it leads to needless conflict. It is worth debating the issues to see if we can perfect the system or if there are different systems operating in other jurisdictions that work better than ours. There are huge deficiencies in our legal system and we should not be smug about it.
Perhaps now is not the time to raise the issues that should be addressed about specialist judges who would be properly trained in family law rather than under our present system, where Circuit Court judges deal with family law cases along with other workloads. I am in favour of specialist court facilities and much better mediation because it leads to improvement. I have never been involved in any facet of activity where improvements cannot be made by listening and by attempting to be open minded in taking genuine concerns in hand.
I am still not happy that we have availed of any further conditions prescribed by law. The fourth codicil to Article 41, section 3, subsection 2th has not been used to make any further conditions prescribable by law. There is a case for the court to have independent assessments undertaken on a professional basis as to the likely effect of the decree on dependent children so that the judge in making his judgment and in deciding on matters that are the subject of later provisions in the Bill — provision, parenting, custody, etc. — can make a more informed decision. If this is not included in the Judicial Separation Act, perhaps it should be added to the Act. Nobody is suggesting it is perfect; it is an excellent Act but it could be improved.
There is a case for the Minister to look at this question for Report Stage and to ensure that the rights of dependent children, who in modern society can be capable of knowing their own mind, will be assessed independently and will not become the subject of pressure from either parent, which is what now happens sometimes.
Deputy Shatter is concerned about inquiries, but we know that in these cases children can be put under severe pressure by parents to go along with one view or the other. This puts them in an invidious situation. We should take them out of this and not embroil them in their parents' rows. There should be provision for somebody to independently assess their views.
I am annoyed that there is an unwillingness to admit that there may be any deficiencies in this Bill. There appears to be a desire to put it through on the nod and to let the future take care of itself. Will the Minister look at this issue for Report Stage?
If I apply for social welfare benefits, inquiries can be made on the basis of reasonable evidence regarding simple provisions such as a lone parent's allowance. Similarly if I apply for a third level grant the authorities will not simply accept my word as being true. If I advise them of what my salary is they will ask for my P60. Reasonable inquiries are made by the State on all aspects of our lives. Such inquiries, in a matter as important as divorce, should be made by the court so that the court can satisfy itself that the terms of the Constitution and the legislation are being complied with. If everybody was so honest there would be no need to produce a P60 when applying for a third level grant. There would be no need for inquiries because everybody would tell the truth.
If a couple entered into a legally binding agreement at or subsequent to marriage that neither spouse would seek the dissolution of the marriage, would this preclude the court from granting a dissolution? Would it allow those couples who voted against the referendum and are anxious to retain an indissoluble marriage to proceed on this basis?
With regard to the inquisition arrangements, it would not be my intention to bring forward amendments on Report Stage to provide for that kind of procedure.
I refer to the inquisitorial system as it applies in the legal system in France, etc.
I know what the Deputy means by an inquisitorial system. I take it at its face value and I do not have proposals to introduce amendments along those lines on Report Stage. However, it is open to the Deputy to put down any amendments he may wish. The Oireachtas has to consider any amendments that are in order and are not unconstitutional. I will examine and comment on them if they are put down.
On the question of an agreement between two people not to apply at any stage for a divorce debarring any one of them from subsequently applying for a divorce, it takes two people to maintain a marriage and if two people maintain that agreement the question of a divorce will not arise. They would observe the agreement reached between themselves. However, such an agreement would not debar them from making an application for a divorce.
It is, therefore, technically impossible to register an indissoluble marriage in the State because of the form of the amendment. Is that correct?
The amendment provides that a person may apply for a divorce and if the court is satisfied that certain conditions apply in the history of the marriage the court may then, in the exercise of the jurisdiction conferred by the amended Article of the Constitution, grant a divorce.
Question put and agreed to.