I would like to call the meeting to order. We will start on the Committee Stage of the Judicial Separation and Family Law Reform Bill. I now call section 1 and I would ask the Minister to move amendment No. 1.
NEW SECTION.
NEW SECTION
Chairperson
I understand that amendments Nos. 1 and 2 will be discussed together.
Chairperson
Is that agreed? Agreed.
I move amendment No. 1:
In page 4, before section 1, to insert the following new section:
"1.—(1) An application by a spouse for a decree of judicial separation from the other spouse may be made to the court having jurisdiction to hear and determine proceedings under Part III of this Act on one or more of the following grounds:
(a) that the respondent has committed adultery;
(b) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;
(c) subject to subsection (2) of this section, that there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application;
(d) subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application and the respondent consents to a decree being granted;
(e) subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least three years immediately preceding the date of the application.
(2) In considering for the purposes of subsection (1) of this section, whether—
(a) in the case of paragraph (c) of that subsection, the period for which the respondent has deserted the applicant, or
(b) in the case of paragraph (d) or (e) of that subsection, the period for which the spouses have lived apart,
has been continuous, no account shall be taken of any one period (not exceeding 6 months) or of any two or more periods (not exceeding 6 months in all) during which the spouses resumed living with each other, but no such period or periods during which the spouses lived with each other shall count as part of the period of desertion or the period for which the spouses have lived apart, as the case may be:
Provided that this subsection shall only apply where the spouses are not living with each other at the time the application is made.
(3) (a) In this section spouses shall be treated as living apart from each other unless they are living with each other in the same household, and references to spouses living with each other shall be construed as references to their living with each other in the same household.
(b) In this section ‘desertion' includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse.".
[Acceptance of this amendment and of amendment No. 2 involves the deletion of sections 1 and 2 of the Bill.]
Amendments Nos. 1 and 2 substitute new sections for sections 1 and 2 of the Bill which provide that irretrievable breakdown should be the sole ground for a decree of judicial separation after proof of various matters.
The effect of amendment No. 1 would be that a decree would be granted simply on proof of one or more of the facts of adultery, desertion, unreasonable behaviour, separation for one year, where there is consent or separation for three years. These facts correspond to those in paragraphs (a) to (e) of section 2 of the Bill, with the difference that irretrievable breakdown would not be an additional requirement. My amendment follows more closely the recommendations of the Law Reform Commission. It is in line with the Fianna Fáil Programme for National Recovery as well as the previous Government’s Statement of Intentions, neither of which propose irretrievable breakdown as a ground — they propose facts similar to the ones I have just mentioned.
My view is that since judicial separation does not put an end to marriage, irretrievable breakdown is not appropriate for use in the context of whether or not a decree should be granted. Indeed, the legislation in Northern Ireland and across the water, specifically provides that on a petition for judicial separation the court shall not be concerned to consider whether the marriage has broken down irretrievably. Moreover, the claims made in support of having irretrievable breakdown as the overall ground for granting a decree are not, it seems to me, well founded. It is wrong to suggest that fault, blame, the so-called labelling of spouses in one form or another, or for that matter, confrontation, would not arise under the Bill as it stands. The burden would be on the applicant to establish one or more of the proofs, three of which, adultery, desertion and unreasonable behaviour clearly involve fault. In a defended case it would be for the respondent to show, if he or she so wished, that the marriage had not broken down irretrievably. Before pronouncing a decree in any case it would be the duty of the court to inquire into the facts alleged by one or both parties to satisfy itself that the marriage was at an end.
It is misleading to say that a spouse would not have to make allegations about the behaviour of the other spouse. The reality of the Bill's proposal is that from the moment the separation proceedings would have begun the grounds for the application to the court would have been set out and, in court, oral evidence of those grounds would have to be given and any defence of those proceedings would inevitably raise issues of fact to be settled by the court.
It is the fact of separation only which could justify the claim that the Bill removes questions of fault from the proceedings but even here the court would still have to satisfy itself that the marriage has broken down irretrievably. In this regard, my amendment provides simply that after one year's separation where there is consent, or after three years where there is no consent, a decree will be granted. This approach is more in keeping with the reality of what judicial separation means. I am not that hopeful, however, in view of the experience in the United Kingdom, that separation as a ground will be used all that frequently.
Finally, to conclude on this point, a decree of divorce a mensa et thoro can be sought at present on the basis solely of, say, adultery or cruelty. The addition of a requirement to prove irretrievable breakdown, if it means anything, could result in decrees not being available in circumstances where they can be obtained at present. Against this, however, there is another view which I referred to in my speech on Second Stage, namely, that it would probably be that once one of the facts was proved, acceptance by the court that the marriage was in fact broken down irretrievably would, in practice, become a formality — as it has in England, in relation to divorce, where there is a similar requirement to prove breakdown in addition to one or more other facts, such as adultery or separation. On this view, however, the addition of a requirement to prove breakdown in addition to, say, adultery, serves no useful purpose and is, in fact, unnecessary.
It is clear from the Second Stage debate on the Bill that some Deputies were anxious that it should be open to couples who had separated, as it were, under the one roof, to apply for separation. I understand that section 2 (1) (f), namely, that the family and marital circumstances are such that it is reasonable for the applicant to wish to live apart from the respondent, is aimed at covering those cases. However, section 2 (1) (f) is so widely framed that it could mean anything. Subsection (3) (a) of amendment No. 1 has accordingly been drafted so as to cover more precisely the case in point. The provision makes it clear that, where an application for a decree is grounded on the fact of separation and the spouses concerned are living under the same roof, they can be regarded as living apart, if they can be regarded as living in two households which, as I understand it, is the situation which it is sought to provide for.
The main purpose of amendment No. 2 is to ensure that arrangements as satisfactory as possible are made for children where an application is made for judicial separation. In this connection the comments made in a recent Supreme Court case dealing with maintenance are relevant. The Court stated that in fixing maintenance "the court must have regard to the somewhat pathetic fact that upon separation of a husband and wife and particularly a husband and wife with children, it is inevitable that all the parties will suffer a significant diminution in their overall standard." However, this should not deter us from seeking to ensure that the best possible arrangements are made for the children before a decree can be granted.
The amendment would mean that the question of the children's welfare would have to be investigated whether the parties wish it or not. At present the court does not deal with the position of the children where no application is made for custody and there is no guarantee in such cases that proper arrangements for the children are made. I think the special committee will agree the need for this provision in conjunction with certain other measures in the Bill concerning children.
Another point I wish to make is that the standard of proof which applies generally in civil proceedings is the balance of probabilities. My amendment would make clear that that standard would apply to the grounds for a judicial separation. There are dicta to the effect that heretofore the standard of proof required to establish that fact of adultery is more stringent than the balance of probabilities so that my amendment which, in this regard, follows a recommendation of the Law Reform Commission would effect a change in the law. I might mention that the balance of probabilities is also the standard which will apply to rebuttals of presumptions of paternity and non-paternity when the Status of Children Act, 1987, comes into force. I commend my amendments to the Special Committee.
I would have to say to the Minister that we will be opposing amendments Nos. 1 and 2. I regard it as extremely depressing that the Minister should seek to change the basic philosophy behind this Bill and should seek to press amendments which are completely at variance with the unanimous recommendations made by the Oireachtas Joint Committee on Marriage Breakdown. This Bill, as drafted, reflects very closely and accurately the recommendations made for the reform of this area of our law by the Oireachtas joint committee. That committee made their recommendations after two years of deliberations after receiving in excess of 700 written submissions and after holding in the region of 24 oral hearings with a cross-section of groupings whose views accurately reflected the diversity of views that were expressed to the committee.
Whereas the issue of divorce was a matter of some contention among the different groupings from which the Oireachtas joint committee received submissions, there was virtual unanimity of approach from all groupings, be they groupings involved in social work areas, in political areas, in theological areas, or groupings who represented some of the various Churches who made submissions to us, that the one overall ground for the granting of separation decrees should be irretrievable breakdown of marriage. There was an absolute consensus that this should be the approach and it was a consensus that had reflected in the submissions received by the committee many years of developments and studies by a variety of different groups of the need for reform in these areas.
For example, back in 1972 the student group and the free legal advice centres recommended irretrievable breakdown as the basis for granting decrees of separation. In 1975 the Episcopal Council for Social Welfare, a committee of the Catholic Bishops Conference in a statement on family law recommended irretrievable breakdown as the basis for granting decrees of separation. Indeed, it is noteworthy that in their statement on Wednesday last a member of the Hierarchy, following a meeting of the Hierarchy in Maynooth, indicated support for the provisions of this Bill and the approach taken in it and emphasised that the approach taken accorded with views expressed to the Oireachtas joint committee.
The emphasis in this Bill on irretrievable breakdown of marriage is designed to ensure that, when a couple have to have resort to the courts to seek a separation decree, the courts can look at the overall family circumstances and, if a decree of separation is granted, do it ultimately on the basis that the marriage has broken down and not do it on the basis of labelling one or other spouse, be it the husband or the wife, as the guilty or innocent party in a matrimonial conflict. The grounds stated in subsection (2), which form the basis of assisting the courts to determine whether a marriage has broken down, are not there, in so far as there is reference to adultery or desertion or in so far as there is reference to unreasonable behaviour, so as to enable the courts to label a husband or wife as guilty or innocent. They are there to assist the court in determining whether some of the symptoms of marital breakdown exist — in other words, a finding that a spouse is in desertion is not of itself to determine that that spouse is solely at fault for a marriage breaking down. Desertion would be regarded as an external manifestation of the fact that the marriage has run into considerable difficulties.
The overall ground of irretrievable breakdown is designed to take some of the conflict and some of the distress out of matrimonial court proceedings. Indeed, it is notwworthy that the Minister, in his address to the committee opening the discussion on these amendments, refers to the fact that his amendments follow more closely the recommendations of the Law Reform Commission than those of the Oireachtas Joint Committee on Marriage Breakdown. It would seem to me that in this House we have an obligation, in so far as the Minister is pressing the Law Reform Commission proposals, to take more seriously the recommendations made by a committee of both Houses, who received the amount of representations referred to, and the committee also in their work considered the recommendations of the Law Reform Commission and rejected them. It is noteworthy that the Minister is not pressing the Law Reform Commissions proposals in their totality because whereas the Law Reform Commission did not express the view that irretrievable breakdown should be the one overall ground, having retained the fault ground for the granting of a decree, the Law Reform Commission expressly recommended as an additional and alternative ground that simple proof of breakdown of marriage should allow the courts to grant a decree of separation.
In pages 42 to 45 of the report published by the Law Reform Commission in 1983 on divorce a mensa et thoro and related matters the commission argues that breakdown of marriage should be introduced as an additional ground for the obtaining of separation decrees. It argues that where a marriage has broken down either spouse should be permitted to obtain a decree relieving him or her from the obligation of living with the other spouse since it would be futile for the law to require spouses to live together where the relationship has ceased to be viable. It goes on to say that it may be argued that the corollary of this is that breakdown of marriage should be a ground for legal separtion. It says:
"In support of breakdown of marriage as a ground for legal separation, it may be argued that some people may prefer not to involve themselves in making allegations that their spouses have been guilty of matrimonial misconduct. Rather than making such allegations they may wish to seek a legal separation on the basis that marriage has broken down — a ground that involves no name-calling or criticism of the other spouses' behaviour."
That quote is from page 43 of the report.
The purpose of the Oireachtas Joint Committee on Marriage Breakdown in recommending irretrievable breakdown was to take away the necessity for name calling or criticism of the other spouse's behaviour. It seems that the Minister in the amendments he has tabled intends to retain the necessity for name calling and criticism in circumstances where a marriage is broken down and where spouses may not wish to resort to such name calling. The Minister in his proposal also admits the criteria referred to in section 2 (1) (f) of the Bill, which allows a decree to be obtained upon proof that a family's marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart from the respondent and to cease to be obliged to cohabit with the respondent. That provision contained in this Bill is on all fours with the recommendations made by the Oireachtas joint committee.
The Oireachtas joint committee recognised that you can have a situation of marital breakdown in circumstances where a husband and wife are not only merely living under the one roof but are also living in the one household. There may be no question of the wife or the husband being engaged in an adulterous relationship with anyone. There may be no question of physical or mental cruelty or desertion. You may simply have a couple residing together engaged in a permanent matrimonial war of attrition, who cannot agree about anything in circumstances where the marriage has clearly broken down. In those circumstances there is a need for the courts to be able to grant a decree of separation to deal with that particular problem of spouses who are engaged in that sort of matrimonial war of attrition, although living in the one household under the one roof.
The Minister's amendment, which would result in the removal from this Bill of section 2 (1) (f), would say to such spouses: "We are not going to provide a legal remedy for you despite the fact that the Oireachtas joint committee recognises the necessity to provide such a remedy." The Minister says that the use of irretrievable breakdown, this approach in England, has not resulted in more people looking for decrees of separation. I find that a most extraordinary comment. The reason, generally speaking, people do not use the jurisdiction in England to obtain decrees of judicial separation on the ground of irretrievable breakdown is that the over-whelming majority of people in England whose marriages break down use the ground of irretrievable breakdown to obtain a divorce in England, a remedy which is unavailable within this jurisdiction and a remedy that will be unavailable for many years yet in this jurisdiction.
There is an increasing number of couples currently in Ireland, even within the context of inadequate laws, resorting to the courts to look for decrees of separation. I think something in the region of 200 such decrees, even within the limited legal framework, were granted in the year 1986, and the Minister might have more recent statistics for the year 1987 which I recently sought in a Dáil question. The reality is that there are an increasing number of couples resorting to the courts. There are in the region of 4,000 cases per year between the District, Circuit and High Court at present involving couples whose marriages have broken down. An increasing number of couples are resorting to using inadequate separation laws. The enactment of this Bill will provide a more humane law and will, I have no doubt, result in a large number of couples using the more humane law to extricate themselves from marriages that have entirely collapsed. I find it astonishing that the Minister should suggest that, in effect, none of this is particularly relevant because very few people look for separation decrees in England.
The Minister raises a number of other matters with regard to irretrievable breakdown. He suggests it may serve no useful purpose to have this provision. In the context of the Minister's own amendments as proposed, the Minister proposes that proof of the committal of adultery by a husband or a wife should of itself result in the granting of a decree of separation. Under the terms of the Bill it would be necessary, not merely to prove adultery, but to prove that the marriage has irretrievably broken down. Under the Minister's proposal if a husband or wife committed one act of adultery 20 years ago and then they were reconciled and resolved their problems and continued to live together for 20 years, the wife could, 20 years later, come to court and automatically get a decree of separation upon proof that the husband had, 20 years earlier committed adultery. It does not seem to me that that makes very much sense in the context of what the Minister is stating and it would seem to me more in the interests of everyone concerned that the courts deal with the matter on the basis of a determination as to whether the marriage has or has not broken down.
There are a number of other reasons I can give, Chairperson, for opposing the Minister's proposal. Suffice to say with regard to amendment No. 1 that it seeks to attack the basic principle and philosophy behind this Bill, which is to provide a court jurisdiction to grant decrees of separation on the basis of establishing irretrievable breakdown of marriage rather than having to prove fault. I accept, as the Minister correctly says, that in some instances decrees can be granted by consent and that would not necessitate the proof of fault. The difficulty is that it is rare, when there is consent, that people necessarily need the court's jurisdiction. It is when there is not consent that they do.
In the majority of instances, where there is consent, a couple will conclude a deed of separation and resolve their problems by agreement. The reason it is possible under this Bill to get a decree where there is consent is to allow some couples who agree to separate but cannot work out the financial and property arrangements and the arrangements with relation to children following separation, to use the court's jurisdiction also.
I would like now briefly to refer to amendment No. 2. The Minister is correct in saying that, during the course of the Second Stage debate, some Members expressed some concern about the position of children in the context of the granting of decrees of separation. I know that the concern expressed was genuinely expressed but I think some of it might have been expressed on the basis of a misunderstanding as to how the current law operates and to the mechanisms provided under this Bill. Under the current law if a couple separate by agreement, they conclude a separation agreement and make arrangements with regard to their children and the court does not have to approve, or in respect of which the court's make no contribution unless, or course, those arrangements break down. In all instances the only time the court would have to make a decision with regard to a dispute relating to the guardianship or custody of children is where a husband and wife cannot agree as to what arrangements should be implemented with regard to children.
This Bill effectively contains all the provisions that are necessary to enable the courts to fully and properly protect the welfare of children. Section 10 expressly incorporates within the context of the Bill powers conferred on the court under section 10 (1) (h) to make an order under the Guardianship of Infants Act, 1964, to resolve disputes relating to children. By conferring that power on the courts in the context of separation proceedings, it incorporates into separation proceedings the criteria that the courts must apply with regard to making decisions about children. The automatic consequence of section 10 (1) (h) is that, in making any decisions with regard to the guardianship, custody or upbringing of children, the courts will be bound by section 3 of the Guardianship of Infants Act, 1964, to regard the welfare of the infant as the first and paramount consideration, and the concept of welfare is defined in exactly the same way as that concept is defined in the Minister's amendment No. 2.
Moreover, it should be noted that the Minister's amendment is more limited in the power it confers on the courts pursuant to the Guardianship of Infants Act than is the provision contained in section 10 (1) (h). Under the Minister's amendment, the courts would only be allowed to make orders or give directions under what is referred to as subsection (2) of section 11. That section is concerned with resolving disputes with regard to custody and access to children and with regard to maintenance. Many other types of disputes in practice arise. It may be agreed, for example, which parent should have custody, but the parents may be in dispute as to what the religious education of a child should be. The parents may be in dispute as to what school a child should attend. The parents may be in dispute as to what medical treatment a child should have in a particular situation. The parents may be in dispute as to whether a child requires some form of assistance from a child psychiatrist, or some from of social work, help or assistance where a marriage breaks down. Under section 10 (1) (h) of the Bill, the court is not limited to making orders under section 11 (2) of the Guardianship of Infants Act; it is allowed also to make orders under section 11 (1), which is the general section which allows the court to deal with all of the matters I have just referred to, which matters would not and could not be dealt with by the court under the amendment tabled by the Minister which seems to limit the powers of the court to make orders under section 11 (2) (a) of the 1964 Act. For all of those reasons, we will also be opposing amendment No. 2.
Finally, I would like to come to the final comments the Minister made about the standard of proof being the balance of probabilities. Generally speaking, in civil proceedings the balance of probabilities is the standard of proof. In practice, in family law matters the courts have applied that balance, the balance of probabilities, as the standard of proof, generally speaking, in dealing with not just judicial separation proceedings but in other types of family law disputes that are dealt with by the courts. It is, I recognise, important to ensure that the standard of proof remains as the applicable standard of proof in the implementation of this Bill. It is implicit in the Bill that that is the standard of proof to apply, as in civil proceedings it is the normal standard of proof the courts use. I recognise, however, that in some instances, where cases of adultery have been involved in the past, there has been a suggestion that the standard of proof should be more stringent. That has arisen due to the laws on legitimacy and illegitimacy, which have been changed by the Status of Children Act. In my view it is not necessary to include in the Bill a reference to proof being on the balance of probability.
Certainly if members of the committee felt it would assist in ensuring the Bill was implemented by the courts in the way envisaged, I would be amenable to an amendment being included in the Bill on Report Stage to provide expressly that the balance of proof in establishing that a marriage has irretrievably broken down should be on the basis of the balance of probabilities. If the Minister would consider withdrawing these two amendments I would indicate to the Minister that certainly the Fine Gael group would be willing to accept an amendment which incorporated a balance of probabilities proof requirement in this Bill on Report Stage provided, of course, it was based on irretrievable breakdown of marriage being accepted as the one overall ground for the granting of a decree of separation.
I just want to make one quick point. I cannot understand the Minister's amendment in so far as if he is objecting to irretrievable breakdown of marriage he has included in his amendment that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent. Surely if that is the situation, such a marriage has irretrievably broken down. How can two people find it impossible to live with each other and state that their marriage has not irretrievably broken down?
I indicated on Second Stage that The Workers' Party found favour with the Bill in a general sense and already it has been noted that there is an absence of amendments from this side of the committee. I favour the approach of the Bill as it stands. I think its major commendation is the absence of the labelling process that would inevitably arise should we accept the Minister's amendment. One can think of the type of proceedings that would be drafted and laid on pleadings before the courts, the suggestion that the pleadings are ones couched on adultery, or desertion, or whatever other misdeed that would be laid against the respondent under the various headings allowed for and sought for in the Minister's amendment. It is a much more desirable approach to avoid that labelling and accusatory approach, to lay it on the wider all-embracing ground of irretrievable breakdown.
I am somewhat dismayed that we are even discussing or deliberating this, not only for the reasons Deputy Shatter has advanced in terms of the wide range of deliberations of the Oireachtas joint committee, but because we are so close to agreement in practical terms. The one thing that is separating the two sides of this debate is the notion of having the concept of irretrievable breakdown in the law or not. I cannot believe that we are going to get so bogged down in such a matter, considering that all the grounds have been borrowed word perfect by the Minister from the Bill as grounds upon which he would allow an application go before the court. In fact, if anything I am dismayed at the sheer volume of amendments we as a committee have contrived to produce within six sections of the Bill. It reflects, I suppose, a great deal of attention and a great deal of interest in this; but I have predicted — I hope I am correct in this — that this one issue is the one that is central to a lot of the debate on the Bill. I hope the Minister will on his side recognise that there are more advantages in the approach suggested by the Bill at the moment and that the Fianna Fáil group will consider that the better service will come from allowing for the omnibus label of irretrievable breakdown without the specification of laying your grounds in print in the pleadings and in the naming of the proceedings. For that reason I am still in support of the Bill as it stands and I would not be inclined to the Minister's view on the matter.
I, too, will be opposing the amendment proposed by the Minister. It is unfortunate that we have this amendment before us because, as other Deputies who have spoken on this side of the House have said, the central part of this legislation is the need to get away from a fault-based system of whether it is judicial separation or, hopefully, eventually when we have other legislation like divorce legislation, we must move ourselves away in this area from establishing who committed the matrimonial fault. That only drives people further and further apart. It is very uncaring to have that approach and I do not think it is the way that this committee should proceed.
I am surprised to hear that it was part of the Fianna Fáil "Programme for Government" put before the people at the last election because four members of the present Cabinet sat on the Oireachtas Joint Committee on Marriage Breakdown. They were unanimous in their recommendation with the rest of us that we should stick with the idea of irretrievable breakdown as being the only grounds for granting a decree of judicial separation. Paragraph 7.38 of that committee's report says:
"The Court should grant a decree of Judicial Separation if it is satisfied that the marriage of the person to his or her spouse has irretrievably broken down. Irretrievable breakdown should be the one overall ground for the grant of a decree of Judicial Separation."
That recommendation, like all the other recommendations in the report, was the unanimous recommendation of that committee which included Minister Rory O'Hanlon, Minister Michael Woods, Minister Pádraig Flynn and Minister of State Máire Geoghegan-Quinn. We would be going backwards in this country if we were to go back to the notion that did exist, and exists in the present law, that you have got to establish certain faults against individuals before you can have a decree of judicial separation granted.
In relation to the Minister's amendment about children, I was one of those Deputies who on Second Stage made a number of comments about the need to consider the welfare of children, particularly in relation to marital breakdown, because after all they are usually the innocent victims. At a later stage in the Bill, when I think it is more appropriate, I will be talking about that. One of the aspects of the Minister's amendment which interests me is that, when he talks about welfare, the first aspect of welfare he talks about is the religious welfare of the children. There is no reference, for example, to the educational welfare. I find it rather strange that, in defining welfare, the first definition of what it comprises should refer to the religious welfare of the children, and I accept the points made in that regard earlier by Deputy Shatter. There are people in our society — I read a letter in today's Irish Press in relation to this — who believe that this whole exercise we are engaged in is a kind of divorce by the back door. There are people who want the law to stand as it is because it suits them. They want the people, who have to live in the agony that the present law allows certain individuals to live in who cannot get a decree of judicial separation, to continue. They do not want any progress in relation to this or other matters in the whole area of social policy. I think that this is one of the aspects of their view that has been taken on board.
They do not like the notion of irretrievable breakdown being the grounds for which either a judicial separation decree would be granted or any other legal measure of that kind. We must reject that kind of approach to this problem. We must have a more realistic and more compassionate attitude which helps people rather than hinders people in marital difficulties. That is why I have sought, which has been ruled out of order, the idea of tribunals rather than courts which would help us get away from the notion of establishing faults and trying to establish where the guilt lies, simply driving people apart. It would be a mistake to go down the road of accepting these amendments. I would ask the Minister and the Fianna Fáil Party to roconsider their attitude to this matter because it is very fundamental as far as a lot of people here are concerned and it would be a pity to divide on the first day on this issue and for that to become the kernel of our approach throughout this important legislation.
What I would like to say is that irretrievable breakdown effectively means that the marriage is over or that the situation is irreversible, and that is not consistent with the logical definition of judicial separation. There is a large difference between a separation and an irretrievable breakdown or an irreversible situation. I believe that it is nonsensical to suggest that the inclusion of irretrievable breakdown in the Bill will relieve parties of the necessity to prove fault. In section 2 (1) of the Bill it is quite clear that an applicant for a decree of judicial separation to establish that a marriage is broken down irretrievably must prove the following factors. For example in paragraph (a) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent. To any reasonable person looking at that it is quite obvious that what you are saying is that one party must prove that the other party has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent. That of itself means that a fault situation raises its head straight away. There is no doubt about that. The fault aspect is contained within the Bill, whether you speak about irretrievable breakdown or not, because it is one of the aspects which would establish whether or not the marriage has in fact broken down.
In relation to section 2 (1) (f), which provides that the family and marital circumstances are such that it is reasonable for the applicant to live separate and apart from the respondent and to cease to be obliged to cohabit with the respondent, what is being done there is to allow the court an extremely broad latitude to interpret, as it were, how and in what circumstances there should or should not be a judicial separation. In many ways that clause negatives the necessity for section 2 (1) (a) to 2 (1) (e) as it hands over to the court the decision-making process absolutely and irrespective of what is contained in section 2 (1) (a) to 2 (1) (e). I regard it as very strange that anybody should object to the fact that there should be a necessity, in considering the judicial separation aspect, to first of all provide for the children because their separation is the most profound and difficult separation of all. I believe the Oireachtas would be wrong in not, at first stage, considering the situation of the children. Not to do so would be to ignore the fact that there is a separation for them as well which is more profound, more difficult and, very often, more hurtful.
I will not take up the time of the Committee in going into the legal reasons given already by Deputy Shatter for rebutting these amendments. I want to mention a few practical, everyday terms and experiences. First, I refer to the Oireachtas Joint Committee on Marriage Breakdown. It was historic in terms of the time, effort, depth and total access involved. Deputy Shatter has already mentioned the 700 submissions, an incredible number of oral submissions, all coming from people who dealt on every level with marriage breakdown, from the victims, the agencies looking after the spouses and the fall-out from that, the children and the Churches. We had every level of society and every agency touching upon both the before and after effects of marriage breakdown, making practical experiential recommendations and submissions to the committee.
Historic, yes, and it still stands. One of the highlights of the debate, inside and outside the Dáil, and one of the great welcomes given to such an Oireachtas agreed party recommendation was the base and concept of irretrievable breakdown. We have been bedevilled in this country — as all of us as legislators know, particularly those who practise within the courts — with the adversarial type of court procedure that we have had foisted on us and have never yet reformed. People who have to go through the courts, whether administering the procedure on behalf of the people concerned, or of the victims of marital breakdown, all say that part of the greatest suffering and trauma and fear they experience is the fault-based adversarial, guilt-laden court procedure we are still burdened with.
We had an opportunity as an Oireachtas joint committee, in full wisdom, to make a very definite and defined recommendation on this, looking very carefully on what the Law Reform Commission had said and, in the full wisdom of a considerable time given to it, rejecting that and realising that irretrievable breakdown had to be the only concept in a civilised society.
As Deputy Harney has said, that was a progressive more, a step forward rather than backward, from the very backward situation we have within court procedures anyway. The Minister and Deputy O'Donoghue and, indeed all of us, are absolutely concerned with the welfare of children. I put it to all sides of the House: what in Heavens name do we gain from further laying fault and guilt on one partner in an irretrievable breakdown situation? If we have the welfare of the children as well as the partners foremost, we cannot reject the irretrievable concept where we allow people to emerge with dignity and without taking on guilt more than that which the whole trauma of the breakdown has already imposed on them. On behalf of the children I would urge this as well.
I would like to mention that we have a pilot scheme which all of us see, laud, admire, are glad of and would like to see more of it. That is the one mediation. The whole concept of mediation and the working of it as the first report has shown has been that it is based on an objective, civilised, compassionate and non-fault treatment of people. Its success is there as an example and a model. How can we possibly go backwards? We are making small enough steps in relieving the situation of people in marriage breakdown without continuing to bog them down in guilt, fault and unnecessary and burdensome outdated court procedures that these amendments would seem to try to re-introduce.
I think we are getting ourselves into a bind on this situation over very little and that in fact there is very little between the two alternative positions that are being espoused here. It is put forward in the Bill that we are going to grant decrees of judicial separation on the one and only ground of irretrievable breakdown of the marriage. I do not think that is quite right. I do not think it is quite correct to put it on that basis. If that was all we were saying the Bill would have section 1 only. There would be no section 2. It would simply say that the sole ground is irretrievable breakdown of a marriage and that would be it. The Bill goes on to bring in section 2 to put a very special, and perhaps even artificial, definition on what you mean by "irretrievable breakdown" of a marriage. It has been given a very specific definition and it is saying that to prove that the way you establish artificial breakdown of a marriage which, in itself, as a separate concept is not an identity that stands alone, is an artificial concept, and you do that by proving any one of the conditions laid down in paragraphs (a) to (f). It is an artificial definition and ought to be recognised as such. That is the way it is given.
The Minister's amendments, in a sense, get rid of the artificiality and they lay down conditions instead which, apart from paragraph (f), broadly correspond. I do not think we should have the notion that in the Bill we are getting away totally from the fault concept. We are going a bit in that direction in the sense that the proceedings will simply refer to irretrievable breakdown and no doubt the court order will simply specify irretrievable breakdown. It seems that is about the extent of it. Apart from that, the evidence that would need to be given and would be given, whether we have the Minister's sections 1 and 2, or the original Bill's section 1 and 2, would be identical and I do not see the evidence would vary in either situation by one iota. It would be precisely the same evidence.
I would be interested to hear what Deputy Shatter might say on this. In trying to cope with this artificiality that is there, a kind of contradiction arises in his own Bill. He says in section 1 that the ground is artificial breakdown of a marriage and he goes on to say in section 2 that to establish that, you prove either of the provisions of paragraphs (a) (b) (c) or (d), therefore, leading one to the conclusion that if you prove one of them, for example, if you prove that the respondent has committed adultery, you have then established to the satisfaction of the court that irretrievable breakdown has taken place. How then do you come, in the next subsection, to say that if the court is satisfied you have established that and unless it is satisfied on all the evidence that the marriage has not broken down irretrievably it grants a decree? It seems to me that you are into a contradictory situation there. If you go in and if you establish adultery or any of the other individual fact conditions, then you have proven to the satisfaction of the court, and that is it, that the marriage has irretrievably broken down. Where does section 2 (2) come in? There seems to be a contradictory element arising there. I do not think we should get ourselves into too great a bind about this, as I said at the outset, or contrive a difference. There is very little in it between the two positions.
I am not really sure I would find myself in agreement with the general comments of Deputy Taylor in so far as he feels there is not a lot between us. By virtue of the ministerial amendments, what we are seeing is a polarisation initially between the parties which is such that from day one of the proceedings we are dealing with the fault position that the Oireachtas joint committee felt that we should move away from. From that point of view it is a pity we appear to be dealing solely with the question of blame, with the question of labelling and with the question of fault. It is perhaps regrettable that the Oireachtas joint committee, having sat for such a long period and having discussed the reform of the marital laws in such detail — I think 700 different submissions were tendered — that in one fell swoop the Minister should choose to ignore the recommendations of that committee by substituting the report of the Law Reform Commission. That is a most regrettable step when one considers the number of submissions the members of the Law Reform Commission, with all due respect to them, actually detailed.
In regard to the Minister's suggestion that the Bill as it stands could result in decrees not being available in circumstances where they could be obtained at present, I do not see how that could happen. That is certainly side-tracking the issue. As it stands, the Bill is addressing the problem that for many years people have spoken of and or which for many years we have seen very little action. Deputy O'Donoghue quite rightly mentioned the welfare of the children, which is the basis of the second amendment. One would feel from listening to the Minister on that point that later on in the Bill there is no reference to children at all. When we are discussing later sections we will see that the Bill does take great cognisance of the welfare of the children. Quite frankly, I see amendment No. 2 as being somewhat irrelevant.
I would just like to make a number of points in relation to the Bill. First of all, I am glad to hear Deputy Taylor speak in the manner he has, because I thought perhaps people on the far side of the table were getting a hang-up about irretrievable breakdown. Personally, I have no hang-up about this concept, but I feel it would be more at home with divorce than with judicial separation. Many reference have been made earlier to the Oireachtas joint committee which sat in relation to marital breakdown. I was not a Member of the Oireachtas at that time but I have the idea that perhaps when they were discussing it they were discussing the whole area of marital breakdown and the position of irretrievable breakdown on the basis that divorce as such would be in place in a relatively short space of time thereafter.
Deputy O'Donoghue has made a very relevant point that "irretrievable" by definition means that it cannot be retrieved. Judicial separation is such that the idea is that it has to be retrieved or can be retrieved at some future date, that the separation can be discharged if the parties want to come together. Deputy Harney referred to the opinion that some people in this island feel that this Bill is divorce by the back door. I also feel that the points that are made in the Bill and the various provisos are more in line with a divorce regime than with judicial separation. The reality is that irretrievable breakdown as a concept is more at home in a divorce situation. That is borne out in England where they have more or less "slot machine" divorce based on this concept of irretrievable breakdown.
Deputy Taylor referred to the first subsection outlining the various points in relation to irretrievable breakdown. Section 1 basically refers to where a marriage is broken down irretrievably. I feel that the whole idea of irretrievable breakdown in this Bill is made more complicated by bringing in all these six different grounds on which irretrievable breakdown can be based. It surprised me to read in some of today's newspapers that this Bill was doing away with the fault or the blame aspect. It also surprised me to hear some of the speakers here today saying that they genuinely feel that this Bill will do away with fault. Nothing could be further from the truth. As long as you have a court or a tribunal, call it what you like, there will always be a finger pointed. That is human nature. Someone will always blame the other party. It would be naive to suggest otherwise.
The reports that are coming out in relation to his are, in effect, hoodwinking the general public. Deputy Shatter and the Oireachtas joint committee have put quite a number of grounds here which obviously bring about a false situation. How can one prove adultery other than by pointing the finger at the other party? It is the same with cruelty. I cannot understand this concept. Quite a lot of play has been made about the large number of submissions to the Oireachtas joint committee but the last Coalition Government did not accept the committee's findings. They brought out a statement of intent on the whole area of marital breakdown which, by and large, was, just as are the Minister's amendments, in line with the report of the Law Reform Commission.
The previous Government did not go as far as the recommendations of the Oireachtas joint committee. I have to agree with Deputy O'Donoghue that subsection 2 (1) (f) is far too wide. In effect, it means that none of the other grounds would be used at all. I note from some reading I did that even in England where we tend to believe that fault has gone out of the system it has not, because more cases of divorce are brought on the grounds of adultery than any other.
I would like to conclude by saying that I think the comments made by some of the speakers in relation to the second amendment are nit-picking, because all references made to children in the Bill should be included, The Minister's amendment goes further than any of the other amendments and lays the ground for the assistance of the children in a judicial separation situation. The Bill as framed by Deputy Shatter does not put enough emphasis on the children's situation and the fact that their rights are paramount in all cases. The second amendment, in particular, is one that should get agreement from all sides.
It has to be stated that the general principle of making judicial separation more amenable, making it easier and less costly, streamlining custody, guardianship, judicial separation proceedings into the one set of proceedings, are all agreeable to all sides of the House. It is accepted by all sides of the House that we need reform in this area. The majority of separation cases would be dealt with by agreement between two parties where you would not have the adversarial atmosphere of a court of law, which you have in every court case, regardless of what area of law you are talking about. Secondly, if you cannot get agreement there is, as Deputy Barnes suggesed, a mediation service which is working quite well, which is simply an objective approach in trying to build a consensus out of which ultimately and hopefully, an agreement may arise, again keeping it out of the court. The law itself and the safeguards or structures we have at the moment are all designed to keep, in so far as it is humanly possible, these matters out of a court of law. The problem is that there are certain individual cases where agreement is simply not possible. Therefore, we are dealing with very difficult, complex situations where relationships between husband and wife, between in some cases various members of the family and either of the spouses, is at a very low ebb, and dealing in a very tragic, human situation.
To put it in context, therefore, the point I am making is that the type of cases we are going to be dealing with and to which this Bill addresses itself, involve very nasty situations, when you take it on a relationship level. People are seriously at odds with each other. The implication that to accept this Bill as it stands would, in court, eliminate acrimony, the direction of fault from one spouse to another and very serious allegations being made in court, is naive. It is simply impossible to frame legislation to that extent, to deal with these very serious cases. Regardless of what the intention of the promoter of the Bill may be, I honestly believe that you are not going to take that out of it, because we are going into a court of law and lawyers acting for each party will be there serving their interests and would still be able to keep within their ethical boundaries by pushing a case very far indeed to see that the client wins the case. To suggest that all will be rosy in the garden when this comes up for practical effect is not correct. I am not saying that that is being put across in that way, but I am trying to emphasise that as practitioners we are going to be dealing with very difficult cases and no matter what you do, you cannot get rid of that situation. People will point the finger, as it has been said, and attribute fault or apportion blame when it comes to a court of law.
The point has been made by Deputy Ahern that the previous Government did not accept this irretrievable marital breakdown concept when they issued their statement of intent, simultaneously when the divorce referendum was being held. Presumably Deputy Shatter was as depressed then as he is now with the fact that the Minister's proposals are to omit irretrievable breakdown of marriage as a concept in judicial separation. I hope it does not make him too gloomy.
The point made by the Minister for Justice on Second Stage, and he used the word himself, is that basically we are talking about a conceptual difference, whether irretrievable marital breakdown is a proper concept when one is dealing with judicial separation. I take the point Deputy Barnes made, that if we get away from the legal aspects for the moment, we are dealing with tragic situations. I accept that. But the point is that we as legislators will be putting through a law which will be interpreted by the courts and unfortunately we have to emphasise perhaps, more than would be acceptable to a layperson, what the legal situation is going to be at the end of the day.
Judicial separation comes about when there is an absence of consent. That being the case, there will be an absence of consent right down the line, right to the finishing post, if you want to put it that way. That might not be the proper metaphor to use. But it seems to me that once we accept that fact, and accept the way the courts will behave in these cases regardless of whether this amendment is carried, we have then to decide that we are in agreement that we have to reform the law, and we are now simply talking about the circumstances under which judicial separation should be granted. When you think about it, even in a judicial separation and even under this Bill, it would be possible, and this is envisaged, that in certain cases people would be able to go back to the court and have that decree nullified. Then irretrievable breakdown is, even by that concept alone, again compromised because we are saying that we will allow a judicial separation on the basis of irretrievable breakdown but if it subsequently transpires that there has not been irretrievable breakdown you can come back and we will nullify your decree.
I think that from the aspect of good law — and I am not saying that one is better than the other, I am saying from the conceptual aspect and that is what is going to be involved at the end of the day — we should be consistent in what judicial separation has been taken to mean down through the years and I do not see why we should change that. In other words, it is a right for people to live separate from each other but there is still, within that jurisdiction, the right for those people to come back and live together again. That is what separation means, whether it be a separation agreement or a judicial separation or whatever, and why we should extend the definition to include irretrievable marriage breakdown while at the same time contemplating in the Bill the reunion of that marriage, seems to be an unwarranted extension of what we are talking about, because the practical effect at the end of the day would be very similar indeed.
The point Deputy O'Donoghue makes is inescapable. We are all making our initial contribution here on what, I agree, goes to the heart of the concept that Deputy Shatter is putting forward in his Bill. He will be able to come back to us and give us his opinion of how the fault attitude will be suddenly exorcised from from this whole procedure. He did say in his initial contribution that section 2 (1) (a) to (e), are simply examples of the fact that marriage is irretrievably broken down, that they are external manifestations of an irretrievable breakdown of marriage. But when you read the Bill you find that it says, at section 2 (1) that, if, in an application for a decree of judicial separation to establish a marriage has broken down irretrievably, an applicant shall prove — not "may prove" or "may advert to"— to the satisfaction of the court one or more of the following facts.
He may prove — and he has stated in his own contribution on the balance of probabilities — that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit. There are many situations you could envisage where a person would go to court on that ground alone and it can involve irresponsible behaviour or bad behaviour in a multitude of situations. He may on his own go to the court and say that the respondent has committed adultery. He will have to prove that to the satisfaction of the court in an adversarial atmosphere, that this person has on the balance of probability committed adultery. It is beyond me how you are going to prove that to the satisfaction of the court without going into fairly heavy detail of the nature of your relationship with your spouse. You are going to have to do it and you will come under very severe cross-examination from the opposing counsel for the other party to prove that you are not simply saying "We are a bit fed up at the moment and we will have a judicial separation here". It will not work that way.
There are specific grounds which will have to be proved and which will involve heavy cross-examination on both sides and where people will seek to justify their behaviour if it was found objectionable by one party at that stage. You are going to have to go into fair detail on it. Similarly with the other three subparagraphs (a), (b), (c), (d) and (e). The only problem there seems to be on this side of the House, if one leaves out the irretrievable breakdown concept in relation to section 2 as it stands, is that 2 (a) to (e) are acceptable but (f) is regarded as being too wide. It is a little wide when you read it.
I think there should certainly be a subsection in the Bill which would allow for the granting of a judicial separation in the absence of agreement between the spouses where they are living in the same house. The proposal Deputy Shatter makes is in relation to the situation where they live in the one house and are also forming the one household; the essence of what the Minister is saying is that you are talking about a situation where there are two separate households within the one house. "Household" in this context, as the Deputy knows, has a specific legal meaning on which there is case law. He would want to explain to me in a lot greater detail — I am sure he will — that there are reasons why a judicial separation should be given where people live in the one house and are still deemed to be living within the one household. There may be some situation one could think of where that would be right and proper. He will probably go into more detail on that when he gets back in on it.
I am emphasising here that there is agreement on the general principles in the Bill. There are some excellent proposals in the Bill on which there may be some technical amendments or whatever but the Bill does help in later sections in the matter of looking after children, etc. The Bill does streamline the process and, hopefully, makes it less costly, because you will be dealing with the one set of proceedings. But I do not see why we should extend the concept. The Oireachtas Joint Committee on Marriage Breakdown made that recommendation. With all due respect, and I know it was a very good Oireachtas joint committee, but it would not be the first Oireachtas joint committee that did not get all its proposals through; if it got four-fifths of them through it would be regarded as a very successful Oireachtas joint committee.
I believe there is a conceptual difference, an important one, if one is to keep the integrity of what judicial separation means in our law. If at some stage in the future, as a result of a referendum, the majority of people in this country decide that there should be divorce legislation, then irretrievable marital breakdown may well be a proper concept in that type of jurisdiction, because you are dealing with people who are, forever and all, decided that their marriage has come to an end and various arrangements have to be made, so people can go off and lead their separate lives and have a right to remarry someone else and, hopefully, not get in the same trouble. It is clear to me — and I think Deputy Taylor has put his finger in it — that the difference between us is not as great as is being put forward. The suggestion that there will be no fault apportioned or that fault will not come into the play of the proceedings is, I think, misguided on practical terms, quite apart from the law. I believe that if we were to reflect on it we may be able to come to some agreement that the definition of judicial separation would remain intact as it has always been and that amendment No. 1 would be accepted.
I will leave my contribution on amendment No. 2 to a later stage.
As I look around the committee I realise that you, Madame Chairman, and I, Deputy Barnes and others are very much in the minority because we have seven distinguished members of the legal profession as members of the committee. Perhaps that is a good thing in many ways because they can give of their experience; and certainly for those of us like myself who do not have a legal mind and who do not think on a legal basis as they would, I think perhaps we can learn an awful lot from them during the course of the discussion on the Bill.
Secondly, looking around I see there are four of us here today — Deputy Harney, Deputy Shatter, yourself and myself — who were members of the Oireachtas Joint Committee on Marriage Breakdown. I am flattered in many ways by the references to the deliberations of that committee, on which we spent many long hours, agonising on many occasions, working on a very fine report, which was presented after a lot of to-ing and fro-ing and a lot of discussion. Of course, all of us on the committee from time to time realised that on that committee we were individuals. We went to the committee and brought our own personal experience to bear on the work of the committee. We were not responsible to our various political parties; indeed I am sure each of the four would agree with me here that on many occasions during the course of the committee's delibereations there were sharp differences even within individual political parties. Be that as it may, I think at the end of the day we tried to come to a compromise, if you like, and come up with what I said I would consider a very fine report.
What we are doing here now is an extension both of that report and the Law Reform Commission's report and a lot of deliberations that have gone on both inside and outside the Houses of the Oireachtas since. The procedure we are about here, I hope, is to make judicial separation more accessible to the people who need it and far less costly. One of the difficulties is — in fact, this came out during our deliberations on the other committee — that it is extremely expensive and, therefore, because of the expense it was a difficulty for very many people who had this problem and particularly for women to get access to judicial separation. Of course, one of the very important points is that all of the discussions in relation to this should be continued in a non-acrimonious, non-aggressive manner. That is what all of us would like to see happening.
Having said all of that, I take on board a lot of the points made by Deputy Taylor, because one of the things I read on some paper — I missed the first meeting because I was away — which I thought was a substantial improvement was the report which stated that we were taking away the fault basis, the burden of blame and so on, where you again have an acrimonious situation, if you like. On coming back and reading the two sections, and in particular listening to what Deputy Taylor said, I would like if Deputy Shatter could explain how you can on the one hand talk about taking away blame and fault and, on the other hand, bring in section 2 of the Bill, which talks about proof of desertion and proof of adultery, living apart for three years or one year or whatever. How does one take away the burden of blame and the burden of proof? What Deputy Taylor said is quite correct, that the difference between what the Minister is suggesting and what is in the Bill is a very minute difference.
If we are going to continue to work together on the Committee it is important that we start off in a non-acrimonious manner. For that reason we should work around the proposals in front of us. It would be very well worth while and would be seen outside as an intention by all of us to work towards a more satisfactory situation than what we have now.
The Minister's amendment, No. 2, is a particularly important amendment. There is no doubt, and I go along totally with what Deputy O'Donoghue said, that in any situation where you have difficulties within a marriage, whether it has even got to the separation stage, the persons who suffer most, even if it is only a stressful period within a marriage, are the children. Obviously, in the case of any judicial separation application there would have to be account taken, first of all, of appropriate arrangements to be made for the children. Amendment No. 2 from that point of view is extremely important and I think that everybody who has spoken accepted that point and would be very much in favour of it.
The question raised by a number of people around the table was whether, if you are talking about irretrievable breakdown, you are saying, in effect, at the same time that irretrievable breakdown means that the marriage is finished and done with and that there is no possibility of the parties ever coming together again. In the case of judicial separation are you, in the Bill, not saying that at some stage there may come a point in that particular separation where the parties may want to get together again? Is there going to be a difficulty as a result of including irretrievable breakdown in that circumstance?
Mr. Kitt
Just to take up the last point made by the Minister of State on the Minister's second amendment, I agree fully with what she says in regard to the suffering of children in the event of a separation. I was surprised that Deputy Harney only referred to the fact that religious welfare was the first thing mentioned in the amendment. It is only fair to point out that the section goes on to refer to the religious, moral, intellectual, physical and social welfare of the children concerned. As far as I am concerned, just to take the word "religious" does not refer to any specific denomination. That should be pointed out.
My other colleagues on this side have mentioned that in the first part of the Minister's amendment and in Deputy Shatter's Bill, no matter what way we look at it the blame concept is there. The Minister said that this burden of proof is there on the applicant to establish one or more of the proofs. The Minister clearly talks about adultery, desertion and unreasonable behaviour involving fault. I would like to ask, as a person who is not a legal person — I have had a lot of queries about this — what is unreasonable behaviour? In fact, I could also ask what is reasonable behaviour? To my mind, the term, "unreasonable behaviour" is a very widely framed term and for that reason I do not see why section 2 (1) (f) is included when already you have these grounds in section 2 (1) (a). Perhaps Deputy Shatter or the Minister could enlighten us as to what exactly that term means. I fully support what has been said as regards the areas from paragraphs (a) to (e) but I cannot for the life of me see why the widely framed paragraph (f) has been included in Deputy Shatter's Bill.
As a person who is still outside the legal elements here but as someone who has worked with children in the social science area, I feel the second amendment is very important. I have seen the hardships caused to children by separation, due to great trauma within the family. Before we can talk about anything we must, and I am sure everyone here agrees, look after people who have very little to say in these matters. I am talking about the children.
In relation to the first amendment, I would agree that the whole concept of irretrievable breakdown is a very difficult one and one which I would see as more appropriate for legislation which would be divorce legislation. I do not consider the terms or the concept necessary for judicial separation. In relation to other proposals that are being made in relation to blame or fault or some such labelling, I, like the Minister of State, hate to see any acrimony, but I find it very difficult to understand the difference between what Deputy Shatter is putting forward and what we are putting forward in that the whole concept under section 1, that fault is very evident and something that can be rebuked. I would see very little difference between both proposals that are being put forward.
Chairperson
There is a vote in the House. We will adjourn for the vote and return later.