The question of Room 114 being made available for our meetings was raised at our last meeting. I understand that Room 114 is not available on Wednesday afternoons or evenings because it is already booked by the Committee on Procedure and Privileges and the Committee on the Irish Language, which begins at 4.30 p.m. The last day we were discussing amendments 1 and 2 and Deputy Coughlan was in possession. Does Deputy Coughlan wish to resume?
JUDICIAL SEPARATION AND FAMILY LAW REFORM BILL, 1987
Chairperson
There are a couple of matters I want to raise that are directly connected with the specific issues under discussion. First with regard to the unrevised version of the Official Report which we have, when was it circulated? We have not got it until now, but when was it ready for circulation.
Chairperson
It was circulated yesterday, and I received it yesterday in the post.
How long does it take to get ready?
Chairperson
When the Houses sit, the Official Reports of the Dáil and Seanad take precedence and with the available staff, yesterday was the earliest date it could be available.
This is a committee of the Dáil and has the same status as a Committee Stage debate in the Dáil and Seanad. This is not an ordinary committee meeting.
I accept that and that is why I am asking how long it took to get this report ready. We had our last meeting three weeks ago.
I do not see where precedence comes in——
Chairperson
This is a matter we could discuss privately later because it does not refer to the business for which we have met today. As you can appreciate, there was an Easter recess and holiday period and many of the staff were on a break. Needless to say they were not able to get things together as quickly as usual.
There are two other matters I would like to raise. One was that, as Chairperson of this committee——
Chairperson
Does this matter relate to amendments 1 or 2?
It has to do with the conduct of this committee.
Chairperson
Does it relate to the actual business before us?
It has to do with the proper workings of this committee. What I want to clear up is that recently there was an impression given, which you helped to create, that my group were obstructing this committee by delaying procedures and by having amendments discussed. I want to state clearly for the record that we had a two hour discussion on a major amendment——
Chairperson
This matter does not relate to the business before us, that is, the amendments 1 or 2. If you have something to discuss with either me as Chairperson or anybody else, you can use the procedures available to you. As Deputy Coughlan is in possession, I am calling on her.
NEW SECTION.
Debate resumed on amendment No. 1:
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 underPart 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 tosubsection (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 tosubsection (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 tosubsection (2) of this section, that the spouses have lived apart from one another for a continous period of at least three years immediately preceding the date of the application.
(2) In considering for the purposes ofsubsection (1) of this section, whether—
(a) in the case ofparagraph (c)of that subsection, the period for which the respondent has deserted the applicant, or
(b) in the case ofparagraph (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.".
—(Minister for Justice.)
Acceptance of this amendment and amendment No. 2 involves the deletion of sections 1 and 2 of the Bill.
The last day we discussed what can be seen as a conceptual difficulty, that is, in the two words "irretrievable breakdown". The purpose of the law should be to encourage spouses with marital difficulties to resolve them, at least to the extent where they come to a fair and just agreement in relation to maintenance, property, the welfare of children, etc. but the concept of "irretrievable breakdown" militates against any hope even of reconciliation. Personally, I feel the concept is more central to the divorce legislation which is seen in the United Kingdom, Canada, the United States and other countries. Such a concept is inconsistent and not necessary for legal separation.
It will be great to have a no-fault concept in our legislation. In this Bill section 1 provides that the sole ground for separation should be that of "irretrievable breakdown", while section 2 provides that when applying for a judicial separation an applicant must prove to the satisfaction of the court one of the provisions outlined in the Bill. This is a contradiction. It is wrong to say there is no fault to be seen. The main purpose of amendment No. 2 is to ensure that satisfactory arrangements are made for the welfare of children. Children are often the innocent victims of many marital difficulties which can often have very disturbing psychological effects not only during a stressful period in a marriage but in later life when they can cloud their perception of the institution of marriage. It is our duty as a committee to ensure that the best possible arrangements are made for the welfare of children within the marriage, and amendment No. 2 is more than necessary to this very important Bill on judicial separation.
First, I would like to thank the Deputy who contributed the last day, and who has just completed her comments. At that time we went into great detail on the Minister's amendments — over two hours. There are a number of comments Deputies have made to which I would now like to respond, and I think it is appropriate to do so. There appears to be some confusion about the way the Bill is drafted and why the provisions in sections 1 or 2, which I think are central to the whole philosophy to the Bill, are there.
As the Minister of State, Deputy Geoghegan-Quinn, recalls the Joint Committee on Marriage Breakdown after two years of deliberations, produced a report that dealt with the entire area of our marital law. In dealing with the area of marital breakdown they made the unanimous recommendation, and I quote from page 49 of their report.
The court should grant a decree of Judicial Separation if it is satisfied that the marriage of the person to his or her spouse is irretrievably broken down. Irretrievable breakdown should be the one overall ground for the grant of a decree of Judicial Separation.
In considering whether or not a marriage is irretrievably broken down, the court should be satisfied that such a breakdown has occurred if an applicant proves one of the following:
"The following" are listed on page 50 as (a) to (f) and correspond exactly with paragraphs (a) to (f) of section 2 (1) of this Bill. A lot of what we were discussing the previous day reflects debates in the Joint Committee on Marriage Breakdown. In the end that committee unanimously concluded that a law on separation should be laid down exactly as it is laid down in this Bill.
In contributions made during the course of the debate on the last occasion this committee met it was suggested that the joint committee, perhaps in so recommending, were dealing with the issue of divorce. It should be categorically stated that they were not. This portion of the joint committee's report is dealt with under the heading of judicial separation and is a chapter entirely separate from the discussion of divorce that takes place in another part of the report.
The Bill reflects the unanimous views of that committee, views which Deputy Geoghegan-Quinn supported. It has been suggested that "irretrievable breakdown" is not an appropriate way of dealing with the issue. That comment was made by a number of contributors on the other side during the course of the previous meeting. Indeed, Deputy O'Donoghue said it is nonsensical to suggest that this will relieve parties of the need to prove fault. It is not nonsensical to suggest that.
"Irretrievable breakdown" means that courts can grant a decree, having heard of the problems experienced within a marriage, on the basis that the marriage has broken down. The court decree as granted would state, that a judicial separation decree is granted due to the breakdown in the marriage or due to the marriage irretrievably breaking down. It will not state it is due to the cruelty or adultery of a particular spouse. It will not make any allegations against a husband or a wife.
The six matters that can result in the court concluding a marriage has broken down, as were listed in the joint committee's report, are symptoms of breakdown and they are the basic symptoms from which a court can draw a conclusion that the marriage has broken down. To suggest, as has been suggested, that there is no difference between what the Minister is saying and what the Bill contains, or that what the Bill contains is in some ways not going to help improve the situation is, I am afraid, utterly false.
The Bill enables decrees of separation to be granted without a husband or a wife having to make any allegations against the other at all. Section 2 (1) (f), a provision which the Minister does not have in the amendments he has before us, is the kernel of the no-fault provisions within the Bill in the context of a couple who are living under the one roof, in the one home together and engaged in a marital war but who cannot agree to separate and yet who cannot live together in a civilised way. Under section 2 (1) (f) the couple living under the one roof engaged in permanent marital warfare will be able to go to the courts and a husband or a wife will be able to say to the court: "The marriage has broken down; we are not communicating; if you are talking about fault it is as much my fault as it is my husband's fault or my wife's fault; if you want to talk about blame we have both equally made our contribution to the marriage breaking down but it has broken down; I am not asking that you condemn either of us but I am asking that the court recognise that our marriage has broken down".
That provision in section 2 (1) (f), taken with the two preceding provisions in the Bill will, I believe, result in the region of 90 per cent of husbands and wives who have to resort to court to get decrees of separation getting decrees of separation without any findings of fault, without them having to cast stones at each other. It will enable them to separate in as civilised a way as is possible. It will enable them to do so, in the context of what the last speaker said, without having to prove fault. It will be great to see a no-fault concept. It should be stated that this is why this provision was recommended by the joint committee. It is, in fact, why it is supported by every voluntary and professional group outside the Houses working in the area of marital breakdown.
Indeed, it is noteworthy that the family lawyers group have made a submission in which they support this. They say that this is a reasonable and realistic way to deal with marital problems. The courts, in determining whether a marriage has broken down, will have not merely to look at what allegations are made, if there are allegations, but at the overall marriage position itself. If the conclusion is that the marriage has irretrievably broken down a decree will be granted.
There has been talk about reconciliation, and the possibilities of reconciliation. The ideal, of course, for every marriage that runs into difficulties is that a couple will resolve those difficulties and will reconcile. In the overwhelming majority of cases if a husband and wife have to resort to the courts to effect a separation the marriage has gone way beyond the possibility of reconciliation. The court system can approach that marriage in one of two ways. It can adopt the approach to allow a couple who can establish that their marriage has broken down to separate in a civilised way and try to diminish the conflict between them as much as possible or make things as difficult for them as it can, make the marital arguments worse, exacerbate the conflict and create even more upset and distress within the family than existed before the couple went to court.
This provision in the Bill is designed to diminish the distress, to facilitate couples whose marriages have completely collapsed to separate in a civilised way. Unfortunately, the Minister, by seeking to remove the provisions of section 2 (1) (f), by seeking to remove the "irretrievable breakdown" provision as the overall ground for the granting of a decree, may be consciously, or unconsciously — I do not believe it is deliberate; it is done possibly without being fully aware of the way these things operate within our courts — guaranteeing that conflict will remain. He is guaranteeing that it will be exacerbated and is saying to some couples whose marriages have collapsed, who are still residing under the one roof but cannot reach agreement about anything other than acknowledging their marriage is virtually at the end, that he is not going to provide them with any legal means of being released from that marriage.
If we are talking about reconciliation this Bill does more than any previous legislation has ever sought to do to encourage couples to effect a reconciliation. In later sections there are provisions under which if reconciliation is possible the courts may adjourn court proceedings. The Minister has tabled an amendment to that section which is designed to assist constructively in that process. Obviously, we are at one mind on what the objective should be whereas we may have difficulties, in the context of that issue, with how it should be drafted.
If the central feature of this Bill, the provision which allows a decree of separation to be granted on the basis of irretrievable breakdown of marriage, is defeated the main impact of the Bill in diminishing conflict in the marital area when marriages break down will be brought to an end. I appeal to members of Fianna Fáil to reconsider the approach they are taking. Deputy Geoghegan-Quinn asked, during the course of her contribution, why was it that this approach was being adopted. She asked how does section 2 get away from fault? I have described how it gets away from fault. It gets away from fault in the way that the committee of which she and I were privileged to be members recommended it should get away from fault. It is very important that we try to facilitate and encourage couples whose marriages have broken down and who cannot agree between themselves as to the arrangements to be implemented to effect a separation to separate in a civilised way by using a court system that is humanitarian and seeks to make things better rather than make things worse.
If by some miracle many years after a couple get a decree of separation they resolve their problems — I would say that in the context of my own work, wearing my hat as a lawyer who has been dealing with family problems for many years I am aware of two instances in 15 years of couples who went through a complete separation procedure and who eventually many years later came back together and were reconciled; it happens very rarely and it happens as rarely as that — this Bill provides for them making applications to the courts to set aside their decree of separation. This Bill does not make that impossible.
I would suggest that, in so far as there is any possibility of a reconciliation, that possibly is better preserved by allowing a couple to separate without having to cast stones at each other, as they can under section 2 (1) (f) than by requiring them to cast stones at each other as the current law does or as the proposals made by the Minister would. I want to conclude by coming back to one issue. Children are, of course, extremely important. When a marriage breaks down it is of the utmost importance that the law protects the welfare of children as much as is possible. There seems again to be a great misunderstanding about this Bill. Section 10 extends all the current protections under the Guardianship of Infants Act as exercised currently through our courts to resolving any disputes with regard to children in the context of separation proceedings. Any matters relating to children arising out of a marriage breaking down by the inclusion in this Bill, in section 10, of powers to make orders under the Guardianship of Infants Act will require the courts when so doing to regard the welfare of the children as the first and paramount consideration. The manner in which this Bill is drafted, in which it incorporates in it in effect the full powers granted under the Guardianship of Infants Act means that the courts will have comprehensive powers to protect the welfare of children where parents cannot reach agreements that are in the interests of their children's welfare with regard to education, religious upbringing, custody issues, visitation rights, holidays, passports and a whole series of other matters.
The Minister's amendment — which he proposes as a new section 2 — is in fact more restrictive than the provisions contained in section 10 (1) (h). The provisions of that section extends all the powers under the Guardianship of Infants Act that would be necessary to protect the welfare of children. In his amendment the Minister confines powers of the court to those that are granted under section 11 (2). Under that section, the court can make custody, access and maintenance orders and cannot determine disputes about education, religious upbringing, holidays abroad — which are often matters of dispute — passports, university education, about a whole series of things. It is under that section that the courts will have comprehensive powers to make any orders that are necessary to protect the welfare of children subsequent to the granting of a separation decree or in the context of separation proceedings.
By virtue of section 8 of the Bill, if it is necessary to protect the welfare of children by making interim orders — before the decree of judicial separation is granted — section 8 (c) will allow the courts to make such interim orders as well. There is no question of the courts being prevented from addressing issues affecting the welfare of children, even before a decree of separation is granted, if those issues need to be addressed.
I understand the concerns expressed by those who have contributed so far. I do believe these concerns are genuine but I think they may be based on a failure to fully understand the impact of the provisions of the Bill and the interactions of other sections with sections 1 and 2.
I appeal to the Minister not to proceed with his amendments, not to divide us at such an early stage in this committee. I reiterate an invitation I made to him the last day we met, which was in the context of one matter that he has in his amendments where he seeks to ensure that proof of breakdown or proof that a judicial separation is something that the court should grant, should require a standard of proof based on the balance of probabilities. I invited the Minister to table an amendment to so provide because, as I have stated, this was implicit in the Bill. I would not wish there to be any doubt about that — upon its becoming law. It would seem to me that a balance of probabilities test is something that instead of simply being implicit, could be expressly incorporated in the Bill on Report Stage.
To say I am puzzled by, disappointed with and regret the statements made so far by Deputy Shatter in regard to my amendments is to put it very mildly. As members of this important committee I have to say that we have a duty and responsibility to address ourselves to every section of this Bill, every word of this Bill because, when it is eventually enacted, it will have very far-reaching implications, first of all, for spouses who wish to separate, and for any children of the marriage and secondly for those judges and lawyers who will have to operate the legislation. Therefore, I should stress that it is incumbent on us to examine every provision of the Bill, to ascertain how it would operate, not just in theory but in practice, not just as we imagine it will affect those involved but, in so far as it is possible to know or inform ourselves, how it will actually affect those involved.
I want to state clearly that already word is abroad that the Government party are obstructing this Bill because we have tabled two important amendments on this part of the Bill. I want to say to anybody who tries to adopt that line of argument, that if a two-hour debate to date on important amendments is to be interpreted as obstruction, then I cannot see much future in our giving the provisions of this Bill the type of examination I believe we must — indeed every word and sentence — if we are to enact the type of legislation that will stand the test of time.
Unfortunately Deputy Shatter has widely advertised his Bill as providing the courts with a jurisdiction to grant decrees of judicial separation on the basis of establishing irretrievable breakdown of marriage rather than having to prove fault or to name-call. At the same time he has alleged that my amendments seek to retain the necessity for fault and for name-calling. These statements are not only regrettable but are wholly inaccurate and misleading. They have been made in one form or another on a number of occasions with a complete disregard for the facts, the Deputy's regard of which is doing himself but, more importantly the public, a very grave disservice. I outlined those facts when I moved my amendment. I believe it would be helpful were I to emphasise the more important of them.
In theory there is one ground on which the court would under the provisions of the Bill grant a decree of judicial separation, that is that the marriage has broken down irretrievably. However, as I and other members of the committee have already pointed out, the court may not grant a decree however clear it may be that the marriage has broken down irretrievably unless the applicant satisfies the court of one or more of the six facts required to be proved under the provisions of section 2 of the Bill, at least three of which are fault-based, namely adultery, unreasonable behaviour and desertion.
Moreover, a spouse who wishes to contest an application of course, will, have an opportunity of doing so. Therefore, it is quite wrong to say that the provisions of the Bill will remove fault from separation proceedings. As Deputy Mervyn Taylor aptly put it, if "irretrievable breakdown" were really the only ground there would be no need for section 2. He pointed out also that my amendments would get rid of the artificiality surrounding "irretrievable breakdown" as the sole ground for a decree. Of course my amendments would go further in that they would remove from the Bill a concept that is not, in any event, appropriate to separation proceedings and is not as far as I am aware, to be found in any other common law jurisdiction as a ground for judicial separation. There is a further difficulty with the Bill. It is that even if one or more of the facts is proved the court may nevertheless refuse to grant a decree of judicial separation. This is because section 2 (2) requires, in addition, that the court must be satisfied that the marriage has broken down irretrievably. I and others have queried this provision.
If it means anything it must require the court to investigate whether or not there has been such a breakdown. The experience in England in relation to divorce — where there is a similar requirement and on which the provision is very obviously based — is that the court would not, in most cases, investigate the matter and in the rare case in which there is a doubt as to whether or not the marriage has broken down irretrievably, the only practical solution is for the court to adjourn the proceedings to enable attempts be made to effect a reconciliation.
There is no such additional requirement under present law. Furthermore, the requirement to prove "irretrievable breakdown" might result in the introduction of fault-finding in cases where the application for a decree is made on the basis of separation. This could not happen under my proposals. I note that Deputy Taylor, in a later amendment sees the danger to which I am referring. In this regard might I say that Deputy Shatter has made much play of his contention that his proposals follow the recommendations of the Joint Committee on Marriage Breakdown. He says his Bill reflects very closely and accurately what is in the joint committee's report. That is his contention. If one examines closely the said recommendations of the committee one will find that in so far as relate to this additional requirement of being satisfied that a marriage has broken down irretrievably, Deputy Shatter's Bill departs in a very significant respect from what the joint committee recommended. They recommended that the court should grant a decree if it is satisfied that the marriage has irretrievably broken down and that, in coming to its conclusions, it should be satisfied that such breakdown has occurred if an applicant spouse proves one of the six facts. That is as it is now set out in the Bill. In other words the Joint Committee recommended that once adultery, desertion or separation is proved a decree should be granted. This is exactly what I am proposing. In this regard my proposals are far closer to the recommendations of the Joint Committee's report than those of Deputy Shatter. Nowhere in the report, which Deputy Shatter has made so much play of, is there a recommendation that there must, in addition to one of the facts, be a requirement that the court be satisfied that the marriage has broken down irretrievably. In this report Deputy Shatter has followed, word for word, the English divorce legislation rather than the recommendations of the joint committee. In case anyone should be deluded into thinking this Bill is not fault based — unfortunately some have been so deluded and Deputy Shatter has done nothing to dissuade them from that view — such person should quickly realise its import, that fault and labelling in one form or another would be a feature of the new separation proceedings under the Bill.
Deputy Taylor made an interesting point in this regard. He said the proceedings under the Bill will simply refer to "irretrievable breakdown" and that, no doubt, the court order will simply specify "irretrievable breakdown". He said that that seems to be the extent of the move away from the fault consent. I should like to point out that there is no certainty that that would be the case or, if it were, that anything would be gained from it. Under similar provisions in our neighbouring divorce jurisdiction the decree nisi of the courts clearly states the facts on which “irretrievable breakdown” were satisfied. Since our courts also state in their decrees of divorce a mensa et thoro the basis for granting the decree, it seems likely that they would continue that practice if this Bill were enacted. In any event, the application for the decree would have to state the facts on which the application was based. It is gravely misleading for Deputy Shatter to contend, as he has done, that I am seeking to retain fault based grounds while his Bill does not. The fact is that his own proposals have fault based grounds and where they apply they would apply more restrictively than under my amendments because irretrievable breakdown would be an additional required in each case.
Deputy Shatter has said that my amendment would result in the removal from the Bill of section 2 (1) (f) and that I am saying to spouses who reside together and are in a permanent war of attrition that they cannot have a legal remedy. If Deputy Shatter had listened to what I said when moving my amendment he should not have made this criticism. I stated, as did the previous Government in connection with a similar recommendation made by the joint committee, that the provision is so widely framed it could mean anything. However, my amendment has been drafted to cover the case in point more precisely. A provision similar to it is to be found in the law of neighbouring jurisdictions. Under my amendment spouses living under the one roof can be regarded as living apart if they are living in two households. That, so far as I can gather, is what is, in essence, intended to be covered by section 2 (1) (f) of Deputy Shatter's Bill. The provision, as it stands in the Bill, is really using a sledgehammer to crack a nut. No court should be left in the position of having to interpret such a wide and vague provision. It would be far preferable that the court be asked to decide the fact of the existence of the two separate households rather than for it to have to carry out an investigation into the family and marital circumstances, which investigation would inevitably lead to fault finding on both sides.
Deputy Shatter referred to section 10 (1) (h) of the Bill in relation to children. That provision does not go far enough. Under my amendment No. 2 the court could, in addition, of its own motion, look at the question of the children's welfare. At present the court does not have that power in guardianship proceedings. The power given to the court under section 10 (1) (h) can only be invoked by the court on the application of either spouse, and in that respect the Bill is deficient. Deputy Shatter states that my proposed new section 2 is limited to empowering the court in separation proceedings to make orders as to custody and access under section 11 (2) (a) of the Guardianship of Infants Act, 1964, whereas the provision of section 10 (1) (h) of his Bill is wider in that it also caters for any orders that might have to be made under section 11 (1) of the 1964 Act, concerning, for example, religious upbringing and education. However, one of the purposes of the new section 2, in so far as it relates to children of the family, is that the court can, of its own motion, address the question of what provision is going to be made for the children. In that connection the court would be mainly concerned with custody and access. Between now and Report Stage I am prepared to examine whether the court's power to deal on its own motion with matters affecting the welfare of the children should even be wider. As matters stand the provision in section 2 is intended to supplement section 10 (1) (h) of the Bill and not replace it. It would empower the court to deal with certain guardianship matters of its own motion, something that is not provided for in section 10 (1) (h) of Deputy Shatter's Bill.
I, too have been surprised, to say the least, that Deputy Shatter has tried to put forward the view that his Bill does not retain fault concepts. It would do no harm to spell that out at this stage.
We did the last day.
Having stated that the court will grant a decree of judicial separation on the grounds that the marriage has irretrievably broken down, Deputy Shatter goes on, in paragraph (a), to say that one of the grounds will be that one of the parties has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent. Does this not show that one must establish that the other party has behaved in such a way that you cannot live with him or her? There is a fault concept there, like it or not. The next ground is that the respondent has committed adultery. There is a fault concept there, like it or not. We go on then to the question of desertion. Surely one would have to say that there is a fault concept there.
Deputy Shatter says that in one of his paragraphs there is a "no fault" concept, that this is in section 2 (1) (f) which provides "that where the family and marital circumstance are such that it is reasonable for the applicant to wish to live separate and apart from the respondent. . ." This places a very grave onus, to say the least, on any court. The court would have to be satisfied, first, that the family and marital circumstances are such that it is reasonable for them to want to live apart and that the marriage has irretrievably broken down. In establishing whether or not it is reasonable for the parties to live apart, surely the court would be expected and would have of necessity to go into the details of the marriage in order to ascertain what the position was. It is ludicrous to suggest that in any such investigation there would not be a fault element. There would have to be a fault element because the heavy onus on the court would oblige the court to go into the situation in grave detail.
As to the necessity for section 2 (1) (f) I am gravely suspicious. If the two parties wish to live apart from one another and if they have been apart from one another for one year, both parties so consenting, then the decree of judicial separation will be granted anyhow. After one year of living apart from one another under the Minister's amendment, both parties so consenting, the decree can be made. We are now down to the time factor and surely it is better that the parties have that year with a view to deciding whether or not they could reconcile their marriage and whether or not they could come back together. Maybe after the year they would not come back together and if they did not come back together, well then the decree of judicial separation would be granted, provided that both spouses consented.
That is a perfectly reasonable statement and I see no necessity whatsoever then for section 2 (1) (f) unless there is something more to section 2 (1) (f) that Deputy Shatter has not mentioned yet. Let us examine it. There is. The concept of "irretrievable breakdown" is contained in divorce legislation in England in the United States and in Canada. It is not contained in judicial separation legislation in Great Britain. The concept of "irretrievable breakdown" has been utilised in certain jurisdictions to grant what I will now describe as rubber stamp divorces. If it is the intention on the other hand of Deputy Shatter to introduce rubber stamp judicial separation or, if you like, "divorce � la Mr. Shatter", he should say that. It is my view that even if that is the intention, it has failed because of the fact that section 2 (1) (f) implies a fault concept.
The people have made a decision in relation to divorce. It is not the function of this committee to override the feelings of the people who have the right under Bunreacht na hÉireann of 1937 to decide these issues for themselves. Whatever one's views on this matter, one has to accept the views of the people expressed democratically in the Constitution of 1937. The facts are that the Minister's amendments allow for a situation where there could be a reconciliation and there is no necessity whatsoever to go beyond that. If there is a reconciliation in a number of cases, as no doubt there will be, that will be a tribute to the Minister's own amendment.
What is happening now is that by providing that there must be an "irretrievable breakdown" concept, Deputy Shatter is obliging the court to say this marriage has irretrievably broken down. To say that the marriage has irretrievably broken down has no place in judicial separation because what is being granted by the court is not divorce, not a situation which has terminated, not an irreversible situation but a decree of judicial separation with the attendent orders which the court may subsequently make. It is obvious that if it is reasonable for people to want to live apart that they would live apart for a year. There is nothing to prevent any party under the Family Law (Maintenance of Spouses and Children) Act from applying to the court for maintenance. Let us get this clear; let us be fair about it. There is nothing to stop anybody from doing that.
In alternative accommodation.
It is quite clear, therefore, that the situation which Deputy Shatter adverts to are covered in actual fact by section 2 (1) (d), except that the parties have the possibility of reconciliation over that short period in time. The Minister's other amendment whereby he sets out that the children to the marriage must be catered for first before any decree is made is perfectly reasonable. As I have said before, it is the children to the marriage who are very often the most hurt and in the most difficult situation.
I would like to say at the outset that I do not wish to delay the committee. I realise because I was present at the last meeting that there has been quite an amount of discussion already but in light of the contributions from the Government party today I think the various issues should be addressed somewhat further.
The first one I would like to address is the basic issue of "irretrievable breakdown" and the shift from the previous situation or the existing situation to a new one, a development in social and legal thinking which is attempting to move away from focusing on the fault and focusing on the result of what has happened within a marriage. I speak as somebody who has had some experience in marriage counselling. Might I add that counselling is based on the premise that one focuses on the result of what has happened rather than on the fault and who has caused it to happen? If you have separation which is based on "irretrievable breakdown" as the one ground, I believe that it will focus the court's attention on that fact, on whether or not there is a breakdown irretrievably. The court will, therefore, not have to focus on who is at fault. It can be quite adequately proved that there is a breakdown without actually proving that one or other party is at fault. The mere facts of what the couple have to live with, the mere facts of what is going on within the marriage, whether they be fault-based or not, will enable the court quite adequately to decide that there is either a marriage existing or a marriage which has irretrievably broken down.
I would absolutely concur with what Deputy Shatter has said concerning those couples who find themselves going into court. The vast majority of them have reached that point having already tried every other avenue and they have now reached the point where they are not going to reconcile. The couple themselves, if they go into court under this Bill, will know that they do not have to prove that the other party was blacker than black. Up to now that has been the absolute impetus behind attempts to obtain a judicial separation. If a couple are in difficulties and they each see a separate solicitor they are then advised as to the best way of achieving a judicial separation. The best way is to make sure that the other party or partner comes off worse, appears the blackest. That at the moment is the underlying thrust of the legislation and I believe that is barbaric and totally unnecessary. It exacerbates any problems and makes it far more difficult for a couple to relate to each other as parents which, as many of the Government party have said, is a primary consideration.
If this new Bill becomes law it means that they may go in and tell that the situation has simply become intolerable. They can give instances of it but they need not point the finger in any damning way. They can say it is simply intolerable and they can give evidence of their own feelings in that regard, but they do not have to go in with the primary aim of blackening their partner from the beginning. That is the biggest difference between the old legislation and what is being proposed.
I want to say a word about the Joint Committee on Marriage Breakdown. I am extremely puzzled at what the Minister has said here today because he seems to be trying to draw some differentiation between what is in the Bill and what is in the Committee's report. He says that the report recommended that there be one ground for judicial separation, namely, "irretrievable breakdown". There were recommended to be a number of proofs and as far as I am concerned that is exactly what we have in the Bill. It was an agreed report and I do not see any difference between the report and the Bill. Therefore, I do not understand why the Minister is drawing any differentiation.
The Minister's amendment uses the proofs that are in the Bill as the various grounds for the granting of a decree but he leaves out section 2 (1) (f). To my mind, the fact that he, first of all, objects to and removes from the Bill the concept of "irretrievable breakdown" and also removes section 2 (1) (f) from the Bill adds up to the one result and that is that one must rely on fault, or at least on allegations of one party against another. If you do not have the concept of "irretrievable breakdown", you, therefore, cannot go into court and say: "This is the existing situation. . ." You have to say that this, this and this has happened according to the proofs in the proposed amendment.
The Minister says that his objection to section 2 (1) (f) is that it could mean anything. I put it to him that I would regard a Bill that does not set out to achieve what is its primary purpose as being defective. If you leave in the narrow proofs, or narrow ground, as the Minister would have it, which are paragraphs (a) to (e) that he would accept, you are very much narrowing the base on which one can apply for a judicial separation.
There are those — I know of them, I have dealt with them and I know Deputy Shatter and others have, too — for whom such an amendment would be disastrous. They are in a situation where their marriage has irretrievably broken down. They have no other way out except to have a general clause which covers them. I do not think it is good enough for us as legislators to dispossess them, as it were. There was reference made to other countries where the idea that irretrievable breakdown should be a ground for only divorce being used here as an argument against using it in our Bill on judicial separation. It is remarkable that that charge should be made when it seems that what has happened is that other countries have developed their laws to take account of social situations and thinking and they have developed their thinking along the lines to the point where they do not wish to put couples unnecessarily through the hoops, to put couples unnecessarily far apart from each other and they have, therefore, come up with this concept, which is a correct one.
Finally, let me address myself to the issue of children. I listened at the last meeting as an observer to the arguments being put forward in relation to the Minister's amendment, relating to children. I do not understand why the Minister wishes to increase the scope of the role that the court has relating to children. If there is agreement between a couple relating to their own children, what role has the court stepping in there? If there is not abuse of children, if there is no neglect of children, why should this situation be any different to children who are in an existing marriage? If the welfare of the children has been disputed, there is certainly a role for the court in that case and the court will be brought into it, but if there is no dispute and if the children's welfare is not at risk, I see no reason to extend the role of the courts into investigating something which has already been agreed. There are existing safeguards available. There are the usual agencies who deal with children who are at risk and there is no need for the court, in this kind of legislation, to be also brought into dealing with that problem.
I could say that I am coming in at this intermediate stage in the debate.
Final stage, I hope, after two hours of discussion.
On a point of order, Deputy McCartan should realise that this committee are dealing with this matter as if we were in the Dáil Chamber and on many occasions when I sought to get in on Committee Stages of various Bills there was no problem coming in and speaking for one hour or an hour and a half and coming in again subsequently. If we have people who wish to make a contribution and to go into the matter in detail, there should be no comment from anybody as to whether it is the final stage or the first stage. In fairness to everybody, there is no need for undue haste. Let us respect each other's contribution.
I will clarify my position very shortly.
In relation to this intermediate stage as I described it, it would be appropriate for me, coming fresh into the discussions, not having been present on the last occasion, to suggest to all sides, and especially Deputy Shatter, to look at the manner in which the first amendment of the Minister accepts the spirit of consensus which existed and still exists in relation to getting this legislation through. I would suggest respectfully that the supporters of the Bill as presented by Deputy Shatter are chasing an illusion in respect of pressing home the insistence of the requirement of "irretrievable breakdown".
I would support Deputy O'Donoghue in relation to what he said this evening about justifying that position. I would like to look at the practicalities of section 2 and, in particular, section 2 (1) (f) which seems to be very much the paragraph at issue, which provides the opportunity according to Deputy Shatter for the court to grant a decree of judicial separation on this alleged ground of "irretrievable breakdown". While I might not be in a position to say anything academically about the concept involved, I would approach it from the point of view of a lawyer either making the case under section 2 (1) (f) or defending the case. It strikes one that the case would have to be pleaded in some type of statement of claim or standard form which might be prescribed.
One wonders would one plead the simple terms of paragraph (f) and say on behalf of the party seeking a separation that there were such circumstances that it was reasonable for the applicant to wish to live separate and apart from the respondent, to cease to be obliged to cohabit with the respondent. That is a very vague and vexatious pleading on its own. I do not think it is a type of pleading that would stand up, having regard to the practice of our courts to compel parties to set out very clearly the grounds on which they seek the relief in the proceedings and not merely the legal basis of their proceedings.
In making the case under paragraph (f), it would be necessary to set out the circumstances. I do not think it would be sufficient to go further and accept Deputy Shatter's thinking and say the circumstances are such that there is an irretrievable breakdown. I do not think even Deputy Shatter would accept that that would be a properly pleaded case. One is driven inevitably to the conclusion that one would have to set out in detail the particular facts, some of which might be quite unusual, but nevertheless the facts would have to be set out or, if they were not set out, I would think that a court hearing the case on an interlocutory application would compel the party seeking to prove the case to set out these facts in great detail. We would be placed then in a position that it would be the court which would be teasing out the circumstances, the very hard, defined circumstances upon which a separation would be given.
One could easily find that a court would justifiably find that there were circumstances which were not envisaged by the paragraphs (a) to (e), inclusive, of section 2 (1). One could not quibble with the court moving in that way. As legislators we should delimit, with some particularity, the manner in which a court would move in that instance. I do not think it helps in the least to say or to predict that a court would only act under paragraph (f) on the basis that there was irretrievable breakdown because irretrievable breakdown is not really a legal term. It has been said that if there is an irretrievable breakdown the judicial separation would go through by consent on a rubber stamp basis. A judge would be left, inevitably, to look for the facts. It is my view that paragraph (f) compels the court to go roaming abroad in relation to what might or might not be circumstances which would justify the court granting a decree of judicial separation. There may well be judges who have the same type of thought process as Deputy Shatter who would say that that is irretrievable breakdown. So be it. There will be other judges who would move under this section for all sorts of reasons, some justified and some unjustified but all of which cannot be predicted by us with any degree of certainty.
It is dangerous for the law makers, given the sensitivity of the public at large in relation to the issue of stability of marriage and the predictability of the legal context in which marriages are set up in this country to give judges free rein in this way. I have reservations as to whether some judges would actually accept, in the present constitutional context, Deputy Shatter's view that some nebulous concept of "irretrievable breakdown" would be enough to grant a decree under paragraph (f). I think some judges would cringe at taking such a view because, in terms of legal definitions and intellectual clarity, the concept is an extremely deficient one.
The reporting procedure for family law cases is deficient, often for good public reasons, but we must accept that it is deficient and that people do not find out what the going rate in a particular court is for some period until patterns are established or until appeals are processed through the courts, right up to the Supreme Court after a number of years. If the legislation is passed in its present form with paragraph (f) we may well be subjecting the married population to an interim period of uncertainty in relation to the import of this particular provision in paragraph (f) until the body of legal learning is established through precedent, by lawyers going from one judge to another, from Donegal down to Kerry and right through the whole run of judges in the High Court until the Supreme Court and various academics sit in judgment on the matter.
We are going through an interim period when more or less anything will go and lawyers will not be in a position to advise their clients with certainty as to what will happen under this famous paragraph (f). The public will be greatly scandalised by the inadequacy of the Legislature in not achieving a reasonable degree of certainty for them and security for their marriages, security and certainty even in relation to their litigation about the marriages. As legislators we will be seen as having failed the people, that is regardless of which view one might take about the inadequacy or otherwise of this concept of "irretrievable breakdown". For that practical reason we should be very wary of paragraph (f). I would not like to pre-empt a decision but if there were further circumstances which might rquire to be elucidated under paragraph (f), why not let us do so and give people opportunities outside either the proposals or the amendment to proceed to get any further relief?
It is quite misleading and inappropriate to say that either the report of the Joint Committee on Marriage Breakdown or this debate is a binding influence on this committee. We have to realise that we did go through a very rigorous public debate and that we had a referendum. Regardless of what view we might take of the referendum, we will have to take cognizances of the debate, the results of that referendum, the thought processes that went on during that time and the position of the ban on divorce in the Constitution. That is a factor which now is interposed since the publication of the report which is a good and sound body of knowledge. Nevertheless, it should be of only persuasive influence on our deliberations here rather than a binding influence. I certainly would not regard it as binding on me as a representative of my constituency or a participant of the debate in this House.
With regard to the amendment concerning section 10 (1) (h) in relation to the position of infants being taken care of by the court only on the motion of either parent, I do not agree with Deputy Colley's view that parents can always be relied on to have regard to the interest of the infant. If that is taken to its logical conclusion we would never have infant settlements in civil cases ruled and adjudicated upon independently by the judge in, for example, road traffic accident cases. The judge will always take unto himself the sole jurisdiction to decide what is good for the infant. Very often one finds parents and insurance companies trying to trespass on this territory and it is a territory that is very closely guarded by both judges and lawyers who have an interest in infants. On that basis there would be many circumstances in which infants would achieve a very substantial and extra degree of protection by the substance of the amendment proposed by the Minister that the court could, of its own motion, consider the welfare of the infants. I congratulate the Minister on having seen its importance.
I will be brief and I will merely respond in the most constructive way to some of what I have heard from the other side of the House. We have been asked to remember the electorate and even Bunreacht na hÉireann was mentioned. Will all sides of the House please take into consideration, in their language, that it is hurtful and offensive to allege that people who are caught up in marriage breakdown have become so without a great sense of pain, a great sense of failure, without a great sense of not having tried. The introduction of language like "rubber stamp" and the insinuation that neither adults in marriage partnerships nor judges can be trusted under section 2 (1) (f), illustrates a total lack of confidence in the people who elected us to respresent them. Such language fills me with dismay and disappointment because my perception of the electorate, the institution of marriage, and of the Judiciary certainly does not lend itself to the kind of paranoia we are experiencing here in language this afternoon.
Like my colleague I hope to be constructive, but I have sat here now for three and three quarters hours and, to be quite frank, I just do not know what Fianna Fáil are about. I respect the right of any member to make a contribution but what they are trying to achieve I just do not know. There is a fair deal of scaremongering going on. There is an implication from what has been said that those on this side of the House who are trying to approach this problem in a realistic way are trying to introduce divorce through the back door. That may go down well politically, but it does not wear with me.
Assuming Deputy Abbott is speaking for the Fianna Fáil Party, he is very concerned about what definition the courts will place on "irretrievable breakdown". He is very concerned about section 2 (1) (f):
that the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart . . .
One wonders what the Minister means in his amendment when he says:
the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent.
Admittedly that is also in the Bill, but what definition will the court put on that provision or what legal interpretation will be put on it? Does it mean that if one's partner snores in bed at night it is not reasonable to be expected to live with that partner? It appears to me that there is a suspicion that there are thousands of people waiting to run into the courts as soon as this legislation is passed, as if we never had separation in this country in the past, as if we never had a situation where people got separations and children had to be looked after. It is quite irresponsible to scare the public into believing that because the Bill as presented by my colleague, Deputy Shatter, has a provision as set out in section 2 (1) (f), there is going to be a flood of applications for judicial separation. What I would like to know from the Minister, on behalf of the Fianna Fáil Party, is what definition he puts on the words that:
the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent;
At least in our legislation if one proves that, one also has to prove that the marriage has irretrievably broken down. Not professing to be a constitutional lawyer or an expert in family law, from the lay person's point of view, I would argue that anybody would know when a marriage has irretrievably broken down. It is simply when two people cannot get on together, cannot stand each other and cannot live together. We are not going to spend months and years fighting this out in the Supreme Court, putting a definition on "irretrievable breakdown". But, I can certainly see that without "irretrievable breakdown" being included, we could have a hell of a row about what is really meant by the words that:
the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent.
I can see a far wider possibility of a row on that issue without some guidance as to whether a marriage has irretrievably broken down. The Minister's amendment is deleting that and is opening up the possibility of having the sort of argument I have put forward, that if one's partner snores in bed one could apply for a judicial separation in accordance with the amendment that the Minister has tabled. I, as a legislator, have a responsibility to encourage those people who find that they cannot live together as husband and wife, in any legislation we pass, to continue to behave as responsible parents. A husband and wife who cannot live together may have three, four or five children. The legislation should encourage those people to behave in a responsible way for the good of those children. We should not do anything to have those parties at each other's throats. If we approach this in a rational and sensible way, and leave it to the courts to decide, in relation to the legislation that Deputy Shatter is proposing, at least there is some chance that both parties may meet, discuss and act in a civilised manner, so that at the end of the day, there may be a possibility that sometime they will get back together again. If the Minister in his amendment is forcing people to comply with one of five conditions, although other circumstances, that none of us in our wisdom have thought about at this stage, have ensured that the marriage has irretrievably broken down, are we going to force people into separating for six months, 12 months or three years so that they can then waltz into a court and say "I complied with the law and now I can have a judicial separation". Are we going to force one of them to commit adultery so that they can say "I now have a reason to apply for judicial separation". Is that what we want? Is it not better to leave it to the wisdom and the discretion of the judiciary who would be dealing with these matters, to see that people comply with the law as we have set out in or Bill? I hope we will behave in a rational and reasonable way and take into account that there are people who find themselves in this position. We should not behave in a way that politically may appeal to a group that are instilling fear into the community about what we are trying to achieve here. We have a responsibility to act responsibly and to take into account that there are people who do not want to be forced into positions in order to qualify under the law for what we would term a judicial separation. We should show compassion to those people and to their children, and we should encourage them to behave in a civilised manner so that hopefully they can get back together some day.
Chairperson
Deputy Shatter will be the next speaker, then Deputies Taylor, McCartan, Flanagan and Cowen. I appeal to all members to be brief in their comments because we are going over a lot of material that has been dealt with already. There has been a lot of repetition in the course of the debate.
I am going to be very brief, because on any points raised by the Minister since I spoke, and by other Deputies opposite, I have already responded. We dealt with them at length the last time this committee met. We are now going around in circles repeating the same things. I am disappointed that we seem to be engaging in a dialogue where people are not willing to understand, open their ears to or accept the bona fides of this side of the House in the explanations we are giving. I am massively confused as to what the Minister has in mind at the end of the day in the context of his proposals and of the approach he is adopting. It is almost not worth repeating that this Bill accurately reflects exactly what the joint oireachtas committee recommended. The Minister seemed to take issue with that. I deliberately quoted the words of the committee when I commenced today and I am not going to repeat them again.
What I am confused about is the Minister's remark. He said that even if one of the facts that he has outlined as grounds for divorce a mensa et thoro or judicial separation as it is more commonly known, is established, under the Bill we have proposed there would be an added difficulty — that “irretrievable breakdown” would have to be established. Is anyone in the Fianna Fáil group seriously suggesting that couples go to court looking for decrees of separation if their marriages have not broken down or is anybody seriously suggesting that our courts should grant decrees of separation to couples except where their marriages have broken down? I find this a very confusing concept. If we are all committed to the importance of marriage, if we want to encourage couples who have difficulties to remain together, surely it is only in respect of those marriages that have irretrievably broken down that the courts should grant decrees of separation. I really do not understand the difficulties that the Minister or the Deputies opposite have with that concept which is very straightforward.
Section 2 (1) (f) is linked in with section 2 (2) which requires the court to grant a decree of separation if satisfied that it has been established that the family circumstances of a couple are such that it is reasonable for them to separate. It seems that that provision provides all the protections that are necessary and can be promptly used by our courts. It ensures that where a marriage has not broken down a decree will not be granted and that where a marriage has broken down, a decree will be granted. It enables a decree to be granted without husbands and wives having a go at each other in the courts. It will allow a husband and wife to come into court and say: "our marriage has broken down and I have contributed as much to the breakdown as has my wife; I do not want the court to decide whose fault it is, I am simply telling the court that the family circumstances are very difficult." The judge would ask for an explanation as to what those difficulties are. He would be given it and would be able to determine whether the marriage had broken down. He would have to say it had broken down because of the fault of the husband or because of the fault of the wife.
If we could just clear up each point as it arises we would all know what the position was. If we all make speeches we tend to forget what the first speaker has said. Deputy Shatter has said that both applicants could say to the court that they think the marriage has broken down. Would it also be possible under this legislation for just one applicant to go to court and say that the marriage has broken down while the other applicant denies it has broken down? Would it be possible for one party to say that and get the decree?
No, it would be possible for one party to say the marriage has broken down and for the other party to say it has not and the judge would have to determine whether it has broken down, just as at present it is possible for a husband to go to court and allege that his wife has committed adultery and the wife may deny it. It has to be determined whether that has happened, just as under the amendments tabled by the Minister that very issue will arise. It is ultimately for a court to decide whether the breakdown has occurred.
Get back to the factor.
There is probably not a lot that can be added. At this stage we seem to be going around in circles. I would hope that, instead of us going around in circles, if the Minister is not willing to withdraw his amendments, we could conclude our deliberations on those amendments and let this committee put them to a vote this evening.
As I said in my contribution the last day, there is not a great difference between the proposal as drafted by Deputy Shatter in the Bill and that in the Minister's amendments. We have spent many hours debating these two proposals. I am not quite clear as to whether the Minister takes exception with the Bill as drafted on the grounds that it would make it too easy to obtain a decree of judicial separation or on the grounds that it would make it too difficult. It is not quite clear from any of the comments he has made what his criticism is. Does he think it is too liberal or not liberal enough? It seems that the Bill as drafted makes it quite difficult to obtain a decree of judicial separation and indeed it is right and proper that it should be so. It should not be easy to get a judicial separation. I think the Bill as drafted makes it difficult enough in the sense that it is not sufficient to go into the court and to satisfy the court that the marriage has broken down. That on its own will not be enough. The court will have to be satisfied that the marriage has not just broken down but that it has irretrievably broken down, in other words, that there is no possibility or likelihood of it being rescued at a future date. That warrants quite a high standard of proof and I could well visualise in many cases a judge, having heard all the evidence, saying: "yes, this marriage as it stands at the moment is in very deep water and is in very great trouble; this marriage has broken down but at the same time it might be retrievable". It could be that if one spouse or the other did such and such, sought treatment or agreed to one thing or another, the marriage might be retrievable and therefore the judge will not make a decree under the law as it stands. So there is quite a high standard there. Maybe the Minister is criticising the Bill as it stands on the grounds that the standards are too high. I do not know. If he is criticising it on that ground then he should say so.
I was just a little amused at Deputy Abbot's comment about the difficulty there would be in advising a client with any degree of predictability or certainty as to what the outcome would be in any of these sections as worded. Any of us who practises law will know that in other branches of the law, even those that are based on more certain rules and regulations than family law, how difficult it can be to advise a client with anything approaching scientific accuracy as to what the outcome is likely to be. That is an objective unlikely to be obtained with anything approaching certainty where family law is concerned. There will always be uncertainties and no two cases will be absolutely alike.
We should get on with this measure now. We have discussed it long enough. The differences between the two positions are thin enough. Basically, the grounds are set out. Admittedly, paragraph (f) puts a different slant on it but in a way it is not all that different from the Minister's subsection (1) (b). On balance, the Bill as drafted is probably the best format to adopt. There is not a great deal of difference between the two proposals. We should get on with the matter and vote on these sections before we conclude the debate this evening.
I came to the meeting today in anticipation of progress. Perhaps that explains in some way the remarks I made by way of interjection. I do not mind listening to any number of Deputies, members of this committee or substitutes, who come in to make their point. They are welcome. My exasperation, if anything, arises from the fact that I have heard absolutely nothing new in any of the contributions that have been made. No doubt, I have very little to add either and for that reason I will be very brief.
On the last occasion every member of the committee made their views on the amendment known and they did so comprehensively. Deputy Coughlan had not concluded and it was only proper that she be given the opportunity to do so today and she has done so succinctly and to the point. I do not know how many more substitutes we have had today nor do I know how many more substitutes we will have the next day but it would be regrettable if we were to leave here today without, after two sittings, at least having progressed beyond one amendment or one section of the Bill. There are two points which have to be made. First, an Oireachtas committee in a previous session looked at this whole area in the most comprehensive fashion conceivable and reported on an all party basis. As has been pointed out today many members of this committee and Ministers of the present Government were members of that committee. We all have the benefit of that report. We know what the issues are, they have been clearly set out.
The second point which has to be made is in regard to references to the referendum and to public opinion. The referendum was about something entirely different and we are all bound by its result. The holding of a referendum was necessary because the Constitution contains a specific prohibition clause but it does not tie our hands in our present deliberations. We are legislating for something entirely different. The suggestion that we are in any way broaching the question of backdoor approaches to the matter is insulting and is designed to do nothing more than destroy and destruct, as far as possible, the consensus that I believe existed for this legislation at the outset. I am appealing that we get back that spirit of consensus and that we continue on from here with that in mind.
I was going to remark on the delay aspect as I see it but I will hold off in the hope that we will have achieved some progress by the end of today's deliberations and that the consensus that certainly existed in the earlier stages of our work will have returned.
The point I tried to make earlier when I interrupted Deputy Shatter was that what is happening is that many points are being made by various spokespersons but that they are being lost by the time the next person comes to speak. We are dealing with legislation and as such we should try to be a bit more specific. If we are going to make one point on one aspect of a section, let us make it, discuss it and have some cross-fertilisation of ideas but at the moment one side is saying one thing and the other side is saying another. There is merit in aspects of the section as drafted as can be seen from the fact that the Minister in his amendment incorporates much of it. There is also a problem with section 2 (1) (f) and the question as to whether the basic concept of "irretrievable breakdown" is a proper concept on which to base reforming judicial separation law.
Deputy Shatter has said that it would be open for the two parties to go to court and admit that their marriage had broken down irretrievably, that they do not want to delay the court and they would now like a judicial separation. The Deputy also said that this would remove the argument as to who was at fault. That is Deputy Shatter's view of what would happen where both of the parties are in agreement on the aspect of breakdown. The first point I want to make is if they both agree that their marriage has irretrievably broken down, why would they need to go to court in the first place for a judicial separation? Would they not get a separation agreement there?
Let me crave the same indulgence that the Deputy had with me. What happens if they both agree that their marriage has broken down and that, although they are living in the same house, they cannot agree about anything else, not even the basis on which they can separate? They cannot conclude a separation agreement and that is what this section is all about.
Let us take that point then, that they cannot agree the basis of a separation agreement and go to court. Deputy Shatter, the promoter of the Bill says that if both parties say the marriage has irretrievably broken down that will be accepted. What the Deputy is saying is that we would have to delay the court by going into it. Is that not what you are saying?
There would still be an obligation on the judge to ensure that the marriage has broken down.
There is no harm in us understanding all of this. We are only getting down to brass tacks now.
That would have to be the case. Section 2 (2) ensures that that would be the position.
That is Deputy Taylor's point about a high standard——
I hesitate to interrupt but I think the debate between Deputy Cowen and Deputy Shatter seems to be based on a misconception of the effect of the Bill. There are five reasons on which a court could hold that a marriage has irretrievably broken down, reasons which have nothing to do with irretrievable breakdown at all, in section 2 (1) which does not place any obligation on the court to hold for anything——
It does. If you read section 2 (2), you will discover that it does.
Chairperson
Deputy Cowen to continue, without interruption.
I do not mind being interrupted because I am actually learning something. Everyone should feel free to interrupt me at any time. They should not worry about doing so. I forgot to mention, that on one of those cases the Deputy referred to extradition law in Lichtenstein——
Chairperson
The Deputy should confine his remarks to the amendment before us.
Deputy Taylor says a high standard of proof will be required, that the marriage has broken down irretrievably, that it will have to be proved not simply that it has broken down but that it has broken down irretrievably. At present the judge has to decide on whether there has been adultery, desertion or unnatural practices. Here, it is intended to broaden the grounds to include other things which are a little vague. One will also have to prove, under section 2 (2), that the marriage has irretrievably broken down. The Minister claims that that concept is not a proper one and that the court should be satisfied that a person's behaviour has been unreasonable. The Minister's amendment states that the behaviour of the respondent must have been such that the applicant cannot unreasonably be expected to live with the respondent. Section 2 (1) (f) states that the family and marital circumstances must be such that it is reasonable for the applicant to wish to live separately.
Perhaps Deputy Shatter could inform me as to whether that would remain an objective test, that it would be for the court to decide whether it is reasonable for the applicant to wish to live separate?
The Deputy is a lawyer.
I am a lawyer but I think there is no harm in teasing out the details. I am sorry if I am not as good a lawyer as Deputy McCartan but there is no harm——
Deputy Cowen is not getting as much money as he is.
Chairperson
Would Deputy Cowen please proceed?
I do not begrudge him that. I want to get this matter straight because people have been speaking here as if we know what we are talking about.
Chairperson
I thought it was pretty clear at this stage.
I am delighted that Deputy Cowen finally recognises some people have not known what they are talking about.
Including yourself. I do not think that Deputy Shatter holds a monopoly on wisdom either. As Deputy Mervyn Taylor has said, it seems that there is not a lot separating us on this. The objective test in section 2 (1) (f) that the court will have to apply is whether the family and marital circumstances are such that it is reasonable for the applicant to wish to live separately. What the Minister is saying is that the behaviour must be such that it would be unreasonable for him and her to live together——
Let me interrupt Deputy Cowen. What the Minister is dealing with is the same as what I was dealing with in the earlier part of section 2 which is the situation where a spouse has to suggest that it is solely the behaviour of the other spouse that is creating the problem. Section 2 (1) (f) is the one which allows the husband and wife both to admit that they have each contributed to the problems, that it is not solely the fault of one. It does not involve any judicial condemnation of one side or the other in the context of the marriage having broken down. That is the key difference between that subsection and the rest of what is contained in section 2. It is the section which would enable the majority of couples to get decrees where the marriage has broken down without having to look for a judicial condemnation of their estranged spouse.
Let me ask Deputy Cowen a question? May I take it from his procedure of questioning and discussion of the provisions that he is open to conviction that perhaps Deputy Shatter's provisions are the better ones, or is it merely an educational exercise on his own behalf that we are engaged in? I would be happy to stay here any length of time if I felt that he was going to take on board what is being seriously said.
Unlike Deputy McCartan, I have an open mind on all of this. No one has a monopoly of wisdom on any of this not even Deputy McCartan or Deputy Shatter.
Do I take it that if Deputy Cowen accepts Deputy Shatter's wisdom on the matter he is free of the party whip to vote——
I am not free, any more than Deputy McCartan is. At least there can be some dissenting voice at my Árd Fheis; there is none at Deputy McCartan's.
Chairperson
Let us confine our remarks to what is before us.
There is not much at the Deputy's either that I have ever noticed.
Chairperson
Deputy Cowen, you contributed very extensively here the last day. Will you please confine your remarks to the amendments. If there is anything new that has not already been contributed today, will you please proceed.
My point is that he contributed the last day in the context that he fully understood every aspect of both the section and amendment.
The point I am making and the reason I am conducting this conversational approach with Deputy Shatter or anyone else is that speeches have been made and had a Deputy made them in the Dáil Chamber on Committee Stage, he would probably have been asked to kindly stick to the point. The point is this: one side is saying one thing and the other side has another approach. I bet it is not clear over there what the exact different is, if people were honest enough to admit it. The marital breakdown aspect is being regarded by Deputy Shatter as being fundamental to this Bill. In section 1 the proof of "irretrievable breakdown" is the sole ground upon which he says a judicial separation will be granted. Could he explain to me then why it is that there are six grounds upon which one has to prove that one's marriage is irretrievably broken down as set out in section 1 and then, in section 2 (2), one still may not get one's judicial separation because it may be open to the court, even after proving one of the grounds in section 2(1), that the marriage has not in fact irretrievably broken down?
Let me answer the Deputy. Under the Bill as it stands, the respondent must prove that adultery has been committed and in addition must prove that the marriage has irretrievably broken down. Under the Deputy's amendment all one needs to do is go into court and prove that the respondent has committed adultery and one can get a judicial separation. That is why Deputy Taylor asked if we want a more liberal law or a more conservative one. Under the Deputy's proposed amendment once one proves that adultery has been committed, that is the end of it. Under the Bill as is being proposed by Deputy Shatter one must prove that adultery was committed but it must also be proved that the marriage has irretrievably broken down. That is basically what we are talking about. That side of the House, and particularly Deputy O'Donoghue, has consistently ignored what subsection 2 (2) says. It is not just a question of waltzing in and saying a marriage has broken down and asking for a judicial separation. It must also be proved that the marriage has irretrievably broken down.
On a point of order, I have referred to section 2 (2) on several occasions. What I would like to ask at this stage is, if Deputies Barrett and Shatter are at odds with one another?
Not at all.
Deputy Shatter says that his Bill makes it easier. Deputy Barrett says it makes it harder. What is it? Where do they stand? Are they at odds?
Chairperson
That is not a point of order. Deputy Cowen, have you anything further to say?
I would like to know the answer to my question.
Chairperson
I think at this stage there has been more than adequate debate.
I am not sure whether I have become more frustrated by the light-hearted nature of Deputy Cowen's contribution or by the strength of the language that was used an hour ago by Deputy O'Donoghue. The difference between the opposing groups at this stage is one centring around the concept of marriage. Listening to Deputy O'Donoghue earlier in the evening, one would think that we were legislating an amnesty for long-term prisoners. We are talking about marital breakdown which affects a very small, but nevertheless significant, number of people when correlated to the number of marriages in existence. We are not talking about opening the flood gates; we are certainly not talking about divorce. For this committee to get side-tracked in scaremongering talk such as we have heard is certainly of no use. At this stage, Chairperson, I propose we put the question without further discussion.
I second that.
Chairperson
Do I take it that the discussion has concluded.
I wish to respond to a couple of statements that were put at my feet during the debate after I spoke.
On a point of order, there is an order of motion before you, Chairperson, that the question be now put. That must be decided before further debate.
Chairperson
The debate has not concluded.
I will be brief.
There is an order that the question be put.
Chairperson
It is not in order.
It is not in order, and I have every intention of replying to Deputy Flanagan.
On what basis is it not in order that the question be now put?
The debate has not concluded yet.
Is it the case that if a majority of——
Surely, there is a right to reply to allegations being made against me.
Chairperson
No time limit has been actually agreed by this committee in relation to the debate and the taking of Committee Stage and as a result, while people still offer, they have to be afforded the opportunity to discuss.
Are you being advised, Chairperson, that the position is that the majority cannot at any stage agree to the question being put? I would be very surprised if that is the case.
Chairperson
I am being so advised.
The Whips agreed to this.
Chairperson
We are in a difficult situation. The meeting is due to finish at 6 p.m.
With a view to resolving matters, could it now be agreed by the committee that we sit for an extra 15 minutes with a view to this matter being put to a vote and the Minister's amendments to sections 1 and 2 being dealt with this evening so that we can complete these two sections? We have then to deal ultimately with whatever other substantive sections there are. We are still on that aspect of it. I am proposing that we sit until 6.15 p.m. and that we then put the Minister's two amendments to the vote. That will allow the Minister to respond and any Deputies opposite who may wish to respond to any comments.
Chairperson
Is there a seconder for that?
On that matter, an agreement was established the first day that we sit for a two-hour session. That was unanimously agreed. Is that agreement now about to be thrown out?
Chairperson
I now have a proposal to extend the meeting for 15 minutes in order to conclude the discussion.
It seems to me that my suggestion would help this committee to make constructive progress. I think we have almost exhausted the discussion on this. It would be of no benefit to this committee in processing this Bill for us to re-open this whole discussion at the next meeting. I ask the Minister to cooperate and agree that we adopt this procedure, with a view to completing these two amendments. We have had very extensive discussion. I think all of us could make ourselves available for a further 15 minutes.
Chairperson
Is the committee agreed that we extend the sitting for a further 15 minutes?
We had a unanimous agreement on the first day that we would sit at specified times and for specified hours and I believe we should stick to that. At another time if we want to discuss the arrangements at a private session, we can do so.
Chairperson
Are you proposing an amendment?
It is 6 p.m. The meeting was called for a two-hour session. It is now past 6 p.m. and I propose that the meeting stand adjourned.
On a point of information, I would remind us all that at our first meeting we agreed to be as flexible as possible, taking into account the serious objective of this committee.
I agree, but I have other business to attend to.
Is it to be extended by 15 minutes or is there a proposal that a vote should be taken at the end of the 15 minutes?
The proposal is that a vote will be taken at the end of 15 minutes.
I cannot see how the meeting can pre-empt the position in relation to people offering. If there are points at issue, surely this committee cannot impose a guillotine on its sitting?
Chairperson
I have a proposal and an amendment, one that we finish at 6 p.m. and another that we extend the sitting until 6.15 p.m.
On a point of order, will you read the Standing Order that gives you the authority to do what you have outlined?
Is it the case that you are advised that the question cannot be put?
Chairperson
That is true.
Perhaps we could deal with the issue now before we run out of time?
The time was agreed. A two-hour session was agreed on. I respectfully suggest that we now meet in private and make whatever arrangements we have to make about such matters.
Are you ruling the motion out of order that the question be now put?
Chairperson
I am, because we have gone beyond the time. It is now past 6 p.m.
It was put within time.
Chairperson
I have been advised that the committee must now stand adjourned until the next meeting. When it is proposed to meet again?
I propose next Wednesday.
Chairperson
Deputy McCartan, there is a problem about next Wednesday. This room is not available because the Blood Transfusion Service will be using it.
If we are meeting on Wednesday week, may I suggest that at the end of that meeting it be agreed that this committee will sit for a further ten minutes to discuss the arrangements and times of future meetings?
Chairperson
Is that agreed? Agreed.
Progress reported Committee to sit again.
The Committee adjourned at 6.05 p.m. until 4 p.m. on 4th May, 1988.