Last week we were discussing amendments Nos. 1 and 2. Deputy Cowen was in possession. As he is not here at the moment, perhaps the Minister may have something to say.
NEW SECTION
NEW SECTION.
Debate resumed on 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.".
—(Minister for Justice.)
Chairperson
In reply to the debate on the amendments that has taken place over the last three meetings, the comments made by those who allege that there has been, is or is about to be a filibuster on the part of the Government to slow down the process of this Bill are unhelpful, whether they are made at the meeting or outside of it, to the press or on radio. The amendments are of prime importance. It is totally unjust and unfair to regard a six hour debate on the core of this legislation, which is of such a serious nature, as a filibuster. We spent six hours discussing amendments Nos. 1 and 2 and anyone who reads the debates will, I am sure, come to the conclusion that the arguments presented by this side in favour of the amendments are unanswerable. I am satisfied that no convincing counter-arguments have been presented by those opposite.
We are very concerned about what Deputy Shatter is advocating in the Bill. It is incumbent on me to deal with certain claims made by Deputy Shatter and others. I want to say initially, so that it will not go unnoticed, that the use of the concept of "irretrievable breakdown" in separation proceedings was rejected by the last Government. At no stage during the course of the debate has Deputy Shatter or anybody on the other side accounted for the change in the previously stated policy of his party when in Government. Indeed, neither did the use of the concept as a ground for a decree of judicial separation form part of the Fianna Fáil Programme for National Recovery and the courts in Northern Ireland and across the water are expressly prohibited by the relevant legislation from considering the question in applications for a decree.
The claim that having "irretrievable breakdown" as the one overall ground for granting a decree will remove fault from separation proceedings is very simply unsustainable. This is because, under Deputy Shatter's proposals, the applicant must prove one of six facts, at least three of which are fault based, before the court will consider granting a decree. Deputy Shatter disputes this and has said it is nonsensical to suggest that the Bill is fault based. However, it is only in relation to the ground of separation that the Bill may remove fault totally from the proceedings.
My proposals in amendments Nos. 1 and 2 also include those grounds. The only difference is that the Bill requires the court, in addition, to address the question of "irretrievable breakdown." This would be the case even where the fact of separation is proved. That investigation, in certain circumstances even though the fact of separation has been proved, might very well involve the court in investigating behaviour. Moreover, under the Bill the conduct of the parties could also be relevant to the granting of maintenance or other orders by the court. Here again the court may be involved in investigating fault. I am quite satisfied that this cannot be denied by Deputy Shatter or cast aside as being nonsensical.
As regards section 2 (1) (f) of the Bill I have great difficulty in ascertaining from the contributions made by Deputies opposite on this provision what exactly Deputy Shatter wants to cover. Various explanations were offered at different times and each time the ground shifted alarmingly. As far as can be gathered from the Explanatory Memorandum which accompanies the Bill, what is purported to be covered is, I quote from page two of the memorandum;
those whose marriages have completely broken down, who are still residing under the one roof although leading separate lives.
Deputies Shatter and Colley agreed on Second Stage that this was precisely the circumstance to be covered. Deputy Shatter described the situation as a couple living with each other but not together. I made it clear from an early stage in the debate that I agreed that provision should be made for such cases. However, the problem is that section 2 (1) (f), as framed, is not confined to such cases and, on the basis of what Deputy Shatter said at the last meeting, it is intended to go far beyond the case where there is factual separation, that is, where there is no sharing of lives between the spouses even though they are living under the same roof. Paragraph (f) reads as follows:
that the family and 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.
Deputy Shatter tried to justify this provision by saying that it is based on a recommendation in the report of the Oireachtas joint committe on Marriage Breakdown. However, the previous Government rejected the committee's recommendation on the basis — I quote from its statement of intentions, April 1986:
The wording proposed by the committee in this instance is unduly vague.
Yet it is this unduly vague provision which Deputy Shatter claims would be availed of by 90 per cent of spouses seeking a judicial separation. The view of the previous Government — with which I fully agree — was perfectly sensible and responsible.
Deputy Shatter said his provision will not lead to judicial separation on demand because the court would, in addition, have to address the question of whether the marriage has irretrievably broken down. However, the experience in other jurisdictions is that "irretrievable breakdown" is an empty formula and as a pleading is automatically accepted. On this view the Bill gives judicial separation on demand as, who is to say that a marriage is not irretrievably broken down when the parties say it is, whether this is true or false. The judiciary in the United Kingdom have expressed those sentiments in relation to a similar requirement in the case of divorce.
Sub-section (3) of amendment No. 1 provides that spouses shall be treated as living apart from each other and thus be in a position to apply for a decree under the separation provisions unless they are living with each other in the same household. Under the amendment, which has a counterpart in United Kingdom legislation, a husband and wife whose marriage has completely broken down and who could not be regarded as living with each other as husband and wife — and that is the crucial point — in the same household even though they might be living under the one roof, would be regarded as being separated for the purposes of obtaining a decree on the basis of separation for one year or three years as the case may be. That is the problem that section 2 (1) (f) was designed to meet but, as I have indicated, attempts to do so in a wholly unsatisfactory manner. My approach, which will entail a purely factual inquiry by the court is, I am fully satisfied, the correct approach in the circumstances. Apart from its vagueness section 2 (1) (f) could lead to unnecessary confrontation and fault finding which Deputy Shatter and his colleagues on the other side say they are trying to avoid.
As regards the position of children, I was truly astounded by Deputy Shatter's approach to my amendment which seeks to enshrine additional safeguards for children in the case of applications for judicial separation. Deputy Colley in her contribution the last day completely misunderstood my proposals. I do not agree with Deputy Shatter or with those who support him that it is sufficient to leave the question of what provision should be made for children entirely in the hands of the parents when judicial separation proceedings are brought. I consider it right and proper that the court should have a direct role where there are dependent children of the marriage. It has often been said, and rightly so, that it is the children who suffer most when a marriage breaks down. For that reason amendment No. 2 proposes that the court should, on its own motion, be able to address the question of the arrangements to be made for the dependent children of the marriage in separation proceedings. While the amendment gives this power to the court only in relation to matters of custody and access, I am prepared to consider extending the power to enable the court in judicial separation proceedings to consider on its own motion all matters relating to the welfare of the children.
I want to deal with the question of unreasonable behaviour which was raised by Deputy Seán Barrett. Deputy Barrett asked what definition the court would put on the words "the respondent has behaved in such a way that the applicant cannot reasonably expect to cohabit with the respondent". He thought that unless the court was required to be satisfied that the marriage had irretrievably broken down, in addition to the fact of unreasonable behaviour, trivial grounds such as snoring in bed could result in the granting of a decree of separation. Deputy Barrett was of the view that the Bill as it stands would avoid that circumstance but that my amendment, by deleting "irretrievable breakdown", would not.
Regarding the concept of "unreasonable behaviour" we know from judicial interpretation of the expression and the jurisdictions where that concept exists, that essentially it has replaced the old ground of cruelty, whether physical or mental and, for that matter, unnatural practices. It has done so in less emotive terms than those expressions. Clearly, the allegations of unreasonable behaviour before the courts in those jurisdictions must amount to no more than a complaint that the parties are incompatible or that one of them is bored with the marriage. That, I wish to point out to the Deputies, is where the concept of unreasonable behaviour stops but where undoubtedly section 2 (1) (f) of the Bill could take over. In other words, there is a world of difference between section 2 (1) (f) and "unreasonable behaviour", which is a well-defined and established concept in common law jurisdictions.
There is no substance in the argument made by Deputy Barrett that a requirement to prove "irretrievable breakdown" in addition to unreasonable behaviour would make it harder to get a separation decree, that is, that the Bill, as against my amendment, is more protective of marriage. The fact is that in the rare case referred to by Deputy Barrett, where there is a doubt whether or not the marriage has irretrievably broken down even though the fact of adultery has been established — and for that matter the fact of unreasonable behaviour — the only practical solution under the Bill — and this is borne out by the position in the United Kingdom where there are similar provisions in divorce legislation — will be for the court to adjourn the proceedings to enable attempts to be made to effect a reconciliation. There is, in other words, no need for the additional requirement of "irretrievable breakdown" in the case as postulated by Deputy Barrett because the court, under the Bill and under my amendments, would have to address itself to the possibility of reconciliation in any event.
These are extremely important amendments which we have discussed. They were pursued, and should have been pursued, vigorously because we are firmly convinced that they represent the right approach to the matters under the Bill
Amendment put.
The Committee divided: Tá, 7; Níl, 8.
Amendment declared lost.