There are amendments by Deputy Taylor. We are going too quickly. I do not think we should go so quickly as to deny Deputy Taylor a chance of trying to make up for a change in his approach during the course of discussion on my amendments. On the first day he appeared to favour them and then he backed away. Now he is coming halfway to meeting me.
SECTION 2.
The next amendment we move to is that tabled by Deputy Taylor. I suggest that it be discussed with amendments Nos. 8, 9, 10 and 12 and 13 as they are related.
On a point of order, before you proceed with that, could I make a verbal amendment to amendment No. 10 to substitute the word "court" for "tribunal".
We accepted that the last day.
I just wanted to get it on the record.
I move amendment No. 7:
In page 4, subsection (1) (d), line 38, after "granted;" to insert "provided that the parties to the marriage may be deemed to have lived separate and apart from each other notwithstanding the fact that they may both have remained in the family home throughout the relevant period;".
The basis of this amendment is to clarify the situation where parties while remaining under the one roof could still be deemed for the purposes of the Bill to have been living separate and apart from each other. There could be a situation where a marriage has broken down but notwithstanding this the parties cannot afford to move into separate accommodation. Although they are under the one roof in the one house, nonetheless it should be open to the court to hold that they are living separate and apart from each other. That very likely would be the position held by the court but to make it quite clear that that interpretation is open, it would be advisable to clarify the matter by having that provisio specifically included in section 2.
Amendments No. 9 is to insert the following paragraph, "that the respondent has treated the applicant in a cruel, humilating or degrading manner". There wre six grounds delineated in the Bill originally. That amendment speaks for itself and no comment is required on it.
With regard to amendments Nos. 7 and 8, the circumstances where one or both spouses who separate remain under the same roof and wish to apply for a judicial separation is catered for in my amendments to sections 1 and 2 of the Bill. My amendments provided that spouses would be deemed to be living apart from each other unless they are living with each other in the same household. I consider that is a better approach than what is proposed by Deputy Taylor in amendments Nos. 7 and 8. His amendments are deficient in that they give no guide to the courts as to what constitutes living apart when both spouses are living in the family home.
I propose to introduce an amendment on Report Stage to make it clear that, when an application for a decree is grounded on the fact of separation and the spouses concerned are living under the same roof, they can be regarded as living apart if they can be regarded as living in two households.
I have doubts about amendment No. 9. The concept of unreasonable behaviour includes the matters referred to in this amendment and the amendment is unnecessary. With regard to amendment No. 10, the purpose of this amendment appears to be to give the court carte blancheto grant a decree of judicial separation where, for one reason or another, any of the various proofs listed in paragraphs (a) to (f) of section 2 of the Bill cannot be proved. I am quite satisfied that such a power should not be given to the courts. Apart from the Deputy’s amendment it refers to the generality of the foregoing but it is not clear what generality is in question. The foregoing provisions are, in fact, particular and not general provisions. With regard to amendments Nos. 12 and 13 in the name of Deputy Taylor——
Will the Chair please clarify what amendments are taken together.
Chairperson
We are taking amendments Nos. 7, 8, 9, 10, 12 and 13. These are related and it is agreed that they be taken together.
If Deputy McCartan was listening instead of being frivolous about——
That is additional information to what was said earlier.
No, it is not. That is the information the Chair gave to the meeting.
Chairperson
That is what we agreed at the outset. We agreed at the outset that amendments Nos. 7, 8, 9, 10, 12 and 13 were related and would be taken together.
I am not the only one who did not hear it.
You are distracting people.
Chairperson
Will the Minister proceed?
If amendments Nos. 12 and 13 were accepted it would mean that, in the case of an application for a decree of judicial separation grounded on "irretrievable breakdown", the court would have to grant a decree after proof of separation for one year where there is consent. In this instance the court would not have to address itself to the question of whether or not the marriage was irretrievably broken down as provided for in section 2 (2) of the Bill. In effect, what this amendment would mean is that an applicant would apply for a decree on the ground of "irretrievable breakdown" based on one year's separation even though the court would not have to consider the question of breakdown. Apart from the artificiality of this approach, to which Deputy Taylor has already referred, and my objections to the use of the concept of "irretrievable breakdown" in the context of judicial separation, these amendments would give the same result in respect of separation when there is consent as my amendments Nos. 1 and 2 would have if they had been accepted. For that reason I support Deputy Taylor's amendments Nos. 12 and 13.
I will address myself to the reasoning behind amendment No. 10. It is only equitable to allow for a situation where the proofs that are already in the Bill under section 2 (1) may not cover all the situations that arise in a broken marriage. It would be unjust and inequitable to prevent couples who are in reality in a position where their marriage has irretrievably broken down but who are not covered by the generality of these proofs. Despite what the Minister said a number of the proofs are general rather than specific. It would be inequitable not to allow a couple to have a grant of judicial separation in such situations.
I disagree with the Minister in his interpretation of this section. It is not giving the court carte blanche. The court has to have regard to what is contained in section 2 (1) and it must find that it was just and equitable to grant a decree given the fact that there is irretrievable breakdown and this has manifestly been shown to be the case. I agree and admit that it is an amendment which is intended to be a catch-all one but it is not trying to catch those whose marriages are not irretrievably broken down. It is trying to make sure that those who genuinely have broken marriages which will not be mended can obtain decrees.
Could we deal with each of the amendments as we come to them? The first amendment is that tabled by Deputy Taylor, amendment No. 7. First, may I say it seems to me that the amendment is not necessary. A couple may be living under the one roof in one house as the Minister describes it, as a separate household under the one roof, which is something extremely difficult to define. If one spouse says, "We are living as husband and wife" and the other says, "No, we are living under the one roof in the one house but we are living as a separate household", it is impossible for any court or any judge under that criteria to determine whether they are living apart or not. If they agree they are living apart there is no difficulty but if they do not agree, unless the judge has been living with the couple he just does not know. That was one of the intrinsic problems with the Minister's own amendment with regard to this area.
In the context of Deputy Taylor's amendment, I understand the problem he is trying to deal with. He is trying to ensure that where a couple are living under the one roof, be it in rented or purchase accommodation, be it in a flat or in a house, and if their marital situation is such that the marriage has broken down but they are not physically living in different buildings, he is anxious to ensure that they have the facility to obtain a separation decree.
In fact this is what section 2 (1) (f), which is the section that the Minister keeps criticising, is designed to cater for, where a couple's marriage has broken down, where they are in effect leading separate lives but still living under the one roof. Instead of the court having to undertake an artificial legal examination to work out whether they are living under one roof as two separate households or living under one roof still as a couple living together, the court instead, can examine what is actually happening in the home, if the marriage is broken down and if it is reasonable for them to separate? It would be correct to say that any couple whose marriage has run into considerable difficulties and who would fall within the category I think Deputy Taylor wishes to cover will be fully dealt with under section 2 (1) (f) and indeed that is the reason that section is there or one of the reasons it is there.
In that context it is worth remarking that the Minister in dealing with the generality of that section kept on referring to section 2 (1) (f) as being vague and kept on expressing a preference for his concept of living under the one roof as two separate households. It is extraordinary that what the Minister seemed to be doing was to try to ensure that instead of the Oireachtas enacting a piece of legislation which truly reflects our own problems in this jurisdiction, we would slavishly follow British divorce legislation in the way in which we approach this. Of course, this is a Bill about judicial separation, not about divorce. I find some of the Minister's remarks on this issue rather unusual but nevertheless I repeat that section 2 (1) (f) would cater for all of the couples whose marriages run into difficulties for whom I know Deputy Taylor wants to provide a legal remedy.
There is a problem — and to this extent I agree with the Minister — with the drafting of Deputy Taylor's amendment in that it is designed to deal in effect with the Minister's formula of the couple living under the one roof as two households. It does not actually define that as such. What it more or less says is that the parties to a marriage may be deemed to have lived separate and apart notwithstanding the fact they both remained in the family home throughout the relevant period. So, you can deem people to be living apart even though they are living together. I am not sure how the judges could implement that.
I know Deputy Taylor is very carefully trying to ensure that a couple whose marriage is genuinely in difficulties and who have not effected a separation can get legal help. I do not think this section would add anything to what is already contained in the Bill. I think it could, in fact, just add an ambiguity to the general position. With regard to amendment No. 8, again I think the same remarks apply. Amendment No. 9 is seeking to add in a further additional factor which would be that the respondent has treated the applicant in a cruel, humiliating or degrading manner.
Of course if a husband has treated his wife in a cruel, humiliating or degrading manner and if their marriage has broken down, the wife should be able to get a decree of separation. She will be able to do so by virtue of section 2 (1) (a) if she wants to rely entirely on the husband's behaviour in those circumstances by establishing that he has behaved in such a way that she cannot reasonably expect to cohabit with him.
The Minister was quite correct in saying earlier this evening that section 2 (1) (a) is a better way of dealing with what falls under the current law as being cruelty or unnatural practices or humiliating or degrading behaviour which under the current law is cruelty. Under all the case law in other countries where the phraseology that is in section 2 (1) (a) has been used, be it in Australia, New Zealand, Canada, England and in a number of other jurisdictions, the position is that all of the matters referred to as an additional matter in paragraph (g) that Deputy Taylor proposes, are fully dealt with under section 2 (1) (a). Again, it bears repeating that any of those matters would allow a husband or a wife to get a decree of separation also under section 2 (1) (f) and there could be no doubt at all about that. Again, it would seem to me that that subsection does not add something that is not in the Bill already. It is already there.
In regard to amendment No. 10, proposed by Deputy Harney and now Deputy Colley is dealing with it, I would have difficulties with that amendment also. I am not sure I know what it is intended to cover. If a marriage has broken down, if the parties cannot live together and if they have to end up in the courts if they cannot resolve their situation by amicable agreement or through the assistance of mediation, again where a marriage has irretrievably broken down section 2 (1) (f) will allow a decree to be granted if it is reasonable that they separate. I am not sure whether to some extent this new proposed subsection is repeating in somewhat different legal language what is in section 2 (1) (f) but in a far vaguer language and in a way that gives the courts no guidance at all. I do not know when it is just and equitable that a separation be effected. Again, I would have difficulty with that amendment.
I would make the overall point about this Bill, which is that this Bill has been deliberately drafted and designed to reflect the political consensus that existed in the Oireachtas Joint Committee on Marriage Breakdown and the provisions in section 2, despite what has been suggested on occasions by some of the speakers opposite, very accurately reflects those recommendations which were based on two years of work, 700 written submissions and 24 oral hearings. Certainly, I have no doubt that they cover the entire spectrum of the problems that need to be dealt with in this area at present.
In regard to Amendments Nos. 12 and 13, I will have to say I have no great objection to them. The Minister has said he supports them and I see nothing disagreeable about them. They are designed to say in effect that where a marriage has broken down and a couple have been living apart for a year and they consent to a decree of separation, in effect the fact that they have lived apart for a year and consent to a decree of separation should result in the courts automatically recognising that their marriage has broken down. I do not see anything wrong with those amendments. I would be perfectly prepared to accept them. Indeed, they reflect the reality.
They may to some extent be superflous in that if a couple have been living apart for a year and they agree their marriage has broken down and consent to a decree of separation being granted and the court looks into the background, it is highly unlikely the court will form any view other than that the marriage has irretrievably broken down. You cannot compel a couple who do not wish to live together to do so. Of course, the current legal position in any case is that a couple whose marriage has broken down and who are still living together if they can agree the terms of the separation concurrently, automatically enter into a legally binding separation agreement on the basis of which the consequences of their marriage breaking down, the financial arrangements that have to be made and the arrangements with regard to children that have to be made are all entered into and resolved. That is currently done by agreement without requiring a year's separation between couples who have lived literally under the same roof until the day they sign their deed of separation.
A couple who have lived apart for a year and who consent to a decree of separation would be a couple primarily who have recognised their marriage has broken down, have been able to agree to separate, but have not been able to agree about anything else. They have not been able to agree as to what the consequences of the new arrangements they should enter into should be. They would be asking the court for help with those arrangements. I see nothing objectionable in amendments Nos. 12 and 13. I note the Minister's support for them and I am happy to incorporate them in the Bill. I am not sure they will add anything to the Bill but they certainly will not take anything away from it. The Minister gave a reason for supporting them which I would not agree with. He seems to be suggesting that in some ways supporting them would be logically inconsistent with "irretrievable breakdown". I do not think it would be; it would be acknowledging the reality of "irretrievable breakdown". I hope that, as a committee, we could support those amendments. I hope that the proposers of the other amendments would accept in good faith what I have said and would possibly consider not pressing them.
So far as amendments Nos. 12 and 13 are concerned nothing further need be said because we are all agreed that they will be accepted. I listened carefully to what has been said on amendments Nos. 7 and 8. I am not convinced by the comments made by Deputy Shatter as far as these amendments are concerned. I am more encouraged by the Minister's statement that he intends to bring in his own amendment somewhat along the same lines on Report Stage. I will be happy to have a look at the wording of it and if it is a better wording than mine to defer to it when it is published. We should look at amendments No. 7 and 8 a bit further because they are the only ones before us on this issue.
Deputy Shatter says that the catch-all paragraph (f) covers the situation. I do not see that. There is a difference and I put it in this way. If persons come before the court looking for a judicial separation and seeking to rely on paragraph (f), they have to go into detailed evidence and establish reasons whereby it is reasonable for the applicant to wish to live separate and apart from the respondent. That could be a contested question and could bring up the whole family history and the difficulty as to whether it was reasonable or not. That could be quite a traumatic experience to have to go through. On the other hand, if you had a situation whereby the applicant was seeking to rely, for example, on paragraph (d) or (e) instead where no question of going into the history, blame, fault or reasonableness of living together or not would arise, all they would have to establish is either one year's separation with consent or three year's separation without consent. If they do that the judge will say: "Ah yes, that is fine; three years it was, but separate and apart. You have been in this one house. Have you lived separately?". The question of whether the couple have lived separately arises then because both "separate" and "apart" are required. A judge may then say that a couple may not go ahead on that one because they have been in the one house.
Notwithstanding the fact that they have been in the one house, it is open to the court to deem — and it would be deeming something because in fact if you are in the one house you are not separate or apart — that they were separate and apart for the purpose of obtaining their decree of judicial separation hereunder to avoid the necessity of having to open up the whole possible trauma and contest they would have to go through to establish the matters they would need to establish in a contested situation under paragraph (f).
I have listened to the debate on this and, on balance, I would adopt the arguments advanced by Deputy Taylor. The argument is perhaps in some way illustrated in a circular which I am sure all Deputies here received from AIM who are a group involved in family law reform. They instance "Profile No. 3". I will not go into all the detail of it but it profiles the situation of a woman in the home where the husband treats her as the unpaid servant. A woman in that situation would have a very real difficulty in making a case satisfactory to a court's purposes.
If I interpret from what Deputy Taylor has said that he is more inclined to let this matter sit until Report Stage I will not have too much more to say on it beyond that there is substance in the argument he is making. If we can improve on the Bill, given that we have sought to deal with this whole issue comprehensively, I suggest that we look more carefully at what has been suggested. The argument that it is difficult for a court to decide is an argument which can, perhaps, be applied to every issue that has to be decided on in the course of section 2.
If one looks at subsections (d) and (e) they use the term "separate and apart" and that is clear in what it intends. Maybe what we should have been considering was an amendment along the lines of taking out that term and simply using the word "separately" and leaving out the notion of "apart" altogether because there it suggests a physical apartness and "physical" in the context of marriage means outside the family home. I believe that what Deputy Taylor is advancing has sense and reason to it and we should not leave it as quickly as we might intend to.
One has to be amused at Deputy Shatter alleging that the Minister was in some way slavishly following British divorce legislation when it is quite clear that the wording in Deputy Shatter's Bill introduces into separation laws in this country divorce terminology which has been used throughout the world in many cases to grant rubber stamp divorces.
Chairperson
Deputy O'Donoghue should confine his remarks to the actual amendments before us.
The Government were in agreement with the principle.
With respect, Chairperson, you were not so quick to intervene when Deputy Shatter was speaking.
You will never make Cathaoirleach of the Seanad.
Chairperson
Would you continue, Deputy O'Donoghue? If you want to be thrown out, that is fine.
The most remarkable amendment to come before this committee is, undoubtedly Deputy Colley's amendment which provides that in all of the circumstances of the case it would be just and equitable to grant the decree. This extends the boundaries beyond previously imagined lines and, to a large extent, seems to undermine the concept of marriage itself.
Shame.
It appears to suggest that marriage is not a very serious matter and that it is not something which people must enter into having considered the matter very carefully for themselves. This is possibly the most important step of their lives. This amendment seems to suggest that is not the position and that, where in all the circumstances of the case it would be just and equitable to end the marriage, that should be done. I have never in all my life heard as daft a concept as this amendment and it should be rejected outright by this committee. It is an amendment which could not be sustained by any reasonable person with any kind of respect for the institution of marriage.
I do not want to say a great deal in response to Deputy O'Donoghue except to say that I think if one has regard to the judicial institutions in our State one must have some confidence in the ability of the Judiciary to decide what is just and what is equitable in all the circumstances. That is what my amendment is suggesting that the court should be allowed to decide what is just and what is equitable. It has absolutely nothing to do with undermining marriage. It has everything to do with supporting a couple who are in difficulties and who do not have any other way out. It is only reasonable if the purpose of this Bill is to help people who are in difficulties that we should allow those who are truly in difficulties to be covered by the Bill.
I just want to make a point regarding Deputy O'Donoghue's contribution and for the purpose of putting this Bill into context. There is a complete scheme that is being introduced for the first time and built into our family law and which involves active participation by the court and the lawyers in seeking reconciliation as a very first step, before any of this section can come into play. For anyone to suggest that this Bill, no matter how amended or no matter how presented represents an attack on the institution of marriage is ignoring entirely the complete structure.
The amendment is what I was dealing with and maybe Deputy McCartan was not listening again.
I listened with intent. If anything, it almost shifted me off my ground and onto the ground of supporting the amendment. This line was advanced here the last day and again today. We must remember that the most radical advances in the Bill are in the area of active construction of reconciliation into the process of the law. What it is doing, if anything, is strengthening the institution of marriage and bringing a degree of respect and dignity into the whole procedure. I feel I must make that point. That is why I am sitting over here and that is why I support this Bill. We are not doing justice to what all of us here are attempting to do by suggesting that we are in some way or other seeking to undermine that very sacrament and institution of marriage — one that I fully believe in.
I would just like to make some brief comments in relation to these amendments. In relation to amendments Nos. 7 and 8, I did not have any grave objection to them because anything that would clarify the two grounds in relation to the question of living apart and living under the one roof is to be welcomed. I note that the Minister intends to bring in an amendment on Report Stage and I would ask Deputy Taylor not to press his amendments at this stage in view of that fact so that we can see at a later stage what the Minister, and anyone else if they so wish, has to say in relation to the matter.
In relation to amendment No. 9, I would tend to agree with Deputy Shatter that this aspect is already covered in section 2. Adding in an additional ground is somewhat superfluous and I would ask Deputy Taylor to let that go. I think what I and Deputy O'Donoghue and most people around this table would have objection to is in relation to amendment No. 10. Earlier we made a song and dance about the fact that this Bill was taking away the question of fault. A big issue has been made by the far side of the table that this side of the table were against eliminating fault altogether from the Bill. I do not agree with that and I think most of the members on this side of the table do not agree with that. The Minister's amendment brought in a number of grounds which were definitely not fault-based which were purely and simply either one year or three years by consent which would allow a separation to take place.
Quite apart from the fact that this is a catch all amendment, just like section 2 (1) (f), it is bringing back into the whole area of judicial separation the question of fault. A judge will have to decide in a court of law what is just and what is equitable. He will have to know all the facts and he will have to make a decision as to who is at fault in relation to the application before him. I would not be in agreement with what is proposed here. I think that is also the attitude on this side of the table. In relation to the last two amendments, I note that everyone seems to be in agreement with them and I am also.
The Minister has said he will be bringing in amendments on Report Stage which will in principle cover what Deputy Taylor is getting at. What he has stated has substance. He has pointed out in his contribution in relation to amendments Nos. 7 and 8 that he is inserting these subsections for the purpose of trying to ensure that there is not the sort of argument about whether one was separated or under one roof. It is to try to reduce argumentative debate in a court of law. It comes back to the basic point that despite the best intentions of the proposer of the Bill, while we are trying to take fault out of it, people will blame each other whether you like it or not. For that reason Deputy Taylor's amendments deserve support in that they seek to alleviate the argumentative debate that might arise.
In relation to amendment No. 9, I would take the point that Deputy Shatter and others have made, that section 2 (1) (a) covers that situation. Amendment No. 10 put forward by Deputy Colley is in a similar vein in that what is being introduced here is the question of reasonableness. What she means by "just and equitable" is that it would be reasonable in the circumstances that people should get a separation.
Briefly, what it means is what it says, just and equitable, which cannot be easily translated just as "reasonable". It is just and equitable having regard to the circumstances.
I do not have a monopoly of wisdom. I hope we are not getting upset about it, I just happen to disagree with the amendment. I am not putting forward something new here. Amendment No. 10 is covered, in my opinion. Section 2 (1) (f) states that the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate. I take the point the Deputy is making in that she is saying it would be just and equitable as a sort of objective test as distinct from it being deemed to be reasonable for the applicant to live separate.
It has been said by Deputy Colley that we should rely on the court; we should not underestimate the commonsense of the Judiciary in trying to decide these matters. Deputy Shatter said originally that the grounds set out on section 2 (1) (a) to (f) are merely to be deemed as external manifestations of the fact that irretrievable breakdown has taken place in the marriage. Now that section 1 has been accepted as the foundation of the Bill and irretrievable marital breakdown as far as this committee is now concerned having divided on the issue, is to be the reason for a judicial separation if it is to go ahead as drafted at the moment, once the court decides that "irretrievable breakdown" has taken place it is obvious, regardless of whether it is just and equitable, that a judicial separation will be granted. To be quite honest, it is irrelevant whether it is just and equitable. If an applicant proves that the marriage has irretrievably broken down the justness or equity of it is irrelevant.
The grounds on which a judicial separation will be granted, as we have now decided, will be on the basis that a marriage has broken down irretrievably. The proposer of the Bill has stated that in section 2 (1) paragraphs (a) to (f) are simply external manifestations of the fact that a marriage has irretrievably broken down. It will not come within the jurisdiction of the court to decide whether it is just or equitable. In fact, it could be an inhibiting factor if one were to put that in. The objective test that a marriage has irretrievably broken down is now the norm for the Bill. Paragraph (a) to (f) more than adequately cover the various circumstances that will arise in proving that it has broken down, with the one rider that Deputy Taylor's amendments are relevant in that the idea of separate and apart runs in conflict with the idea that people can live separately and still remain in the one house. We might defer that to Report Stage. Quite honestly, with all due respect to Deputy Colley, the amendment is superfluous.
Amendment No. 10 is redundant in so far as what is attempted to be covered is covered under 2 (1) (f). I wish to put on record — and I will continue to do so as long as this committee lasts — that any attempt by anybody to suggest that couples will be frivolously or easily given judicial separations and that people are waiting out there to have their marriages undermined by the use of one or two words is totally unacceptable. It is offensive to people who are caught up in the pain and failure of marriage breakdown and I will insist on making that intervention every time.
In an attempt to make progress and wind up these matters, I will withdraw amendment No. 9. There seems to be a fair amount of support for the concept of amendments Nos. 7 and 8 and if we agree to them at this stage I confirm that when the Minister produces his alternative wording, if it is reasonable and towards the same end, I will happily defer to it. I suggest that we take on board those two amendments on the basis that I am giving that commitment.
One or two remarks have been made which might be misleading. In relation to amendment No. 10, Deputy Ahern said that this amendment may seem to be leading us back into a fault situation — trying to apportion blame as between parties involved in separation. Nothing could be further from the truth as far as I am concerned. This amendment is, in fact, moving away from apportioning blame. It is simply allowing the court to grant a decree where the circumstances say that it would be just and equitable. I take on board what Deputy Cowen said about the difference between reasonable and just and equitable. I realise that there is not support for this amendment around the table. It is a reasonable amendment because I can see a situation where somebody falls between a number of proofs. Perhaps they do not fit into one or other and the word "reasonable" section 2 (1) (f) may not apply to their case or it may simply not be proven. The court may still feel that it is just and equitable, in order to be just and equitable, that a grant should be made. I believe that is the case. However, if there is not a reasonable degree of support for it I will not press it.
I welcome the fact that we as a committee decided in principle that "irretrievable breakdown" will be the basis for granting a decree. Deputy Barnes said something that I was going to say and so did Deputy McCartan. I appeal to Deputy O'Donoghue not to make interventions which in some way would suggest that we are either trying to introduce divorce or undermine marriage. There is more in this Bill designed to protect marriage and to encourage people to go to marriage guidance counsellors and to encourage people to sort out their problems without going to court than anything enacted previously since the foundation of the State. I accept that other Deputies have not been approaching it in this way and it is unfortunate that those sort of comments should be made.
The only two amendments that are left among the group we are discussing are amendments Nos. 7 and 8. My view is that any spouse whose marriage is in great difficulty, be it a husband or wife, who is living still under the one roof will be able to rely on section 2 (1) (f) to get a decree of separation. In a sense, to cover this particular additional area is, I suppose, putting a bit of icing on the cake and leaving over another basis upon which one can get a decree. I have some reservations about the ability to use that concept in amendments Nos. 7 and 8 in the context of a husband and wife disagreeing with each other as to whether they have been living together or living apart or what they have been doing in the one house. Those reservations will remain, but if that is a matter of difficulty there is still section 2 (1) (f).
It is unfortunate that the amendment the Minister tabled which fell under providing a new section 1 and which would have removed irretrievable breakdown, incorporated within it subsection (3) because subsection (3) (a) in effect deals in a better linguistic way with the issue than the way adopted by Deputy Taylor. We could not take out the Minister's subsection (3) (a) in his newly proposed section 1 in isolation and insert it in the Bill. I suspect that the Minister intends on Report Stage to submit an amendment somewhere along the lines of what is in his subsection 1 (3) (a) which was lost when the entirety of subsection (1) was lost to deal with Deputy Taylor's proposition. I do not think the phraseology used by Deputy Taylor will deal with this problem. The Minister's subsection will have to be somewhat modified also but it provides a better basis for doing it.
I would be anxious that we do not incorporate in the Bill Deputy Taylor's proposed amendments Nos. 7 and 8 if procedurally it could create a difficulty on Report Stage in inserting the correct amendments. That could be a problem for the committee. Perhaps that could be clarified. I suggest to Deputy Taylor that he might withdraw amendments Nos. 7 and 8 and if he wishes to do so resubmit them on Report Stage. I would like to consider an amendment to deal with this issue at that stage and the Minister will also table an amendment. We could use Report Stage to tease out this particular aspect of matters. I know Deputy Taylor has designed his amendment to deal with a problem which he perceives as not being dealt with under the Bill although I believe it is dealt with. It would be unfortunate if we incorporated a subsection which did not resolve the problem but which created problems because of the manner in which it was drafted. I ask Deputy Taylor rather than insisting at this stage that these two amendments be incorporated in the Bill to withdraw them and either resubmit them on Report Stage for consideration or resubmit them in a different form in conjunction with any amendments any other members of the committee, including the Minister, may wish to submit with regard to this particular issue.
There has been some attempt to paint me as being against all of this Bill. Far from it. In fact, I have been consistently in favour of section 2 (a) to 2 (e) and have consistently opposed paragraph (f) and the "irretrievable breakdown" concept. Indeed, when I spoke in terms of what I would consider to be the creation of an atmosphere whereby marriage could be undermined I was specifically referring to Deputy Colley's amendment. I would like to remind Deputy Shatter, through the Chair, of the comment that he has not decided to accept the concept of irretrievable breakdown but has on a vote decided that irretrievable breadkown would be included.
I would have very serious reservations in relation to the effectiveness of amendments Nos. 7 and 8 to do anything in the mind of a judge who is faced with them. "Deeming" provisions in legislation are always provisions which force on a judge conclusions which cannot be made on the basis of evidence before him, on the basis of applying logical rules or rules of principle outside of the statute. To a certain extent the judge is being backed by the provisions of the Bill into a cart which he is unwilling to pull. To do that there have to be fairly mandatory terms of wording in the provision. The particular terms "may be deemed" are not sufficiently mandatory to enable a judge to deem anything. Judges will not deem things unless they are got by the legislation and have their arms rightly twisted so that they can head in no other way than the way in which the "deeming" legislation would intend them to go. Even accepting these amendments on Deputy Taylor's terms — which I would not for a moment — the wording is inadequate for his purposes. That is the first point I would make.
Secondly, in relation to amendment No. 9, applying a criterion of cruelty and a matrimonial offence of cruelty — it relates to the general point nevertheless in relation to the others and the point mentioned by Deputy Shatter — this whole intent scheme of section 2 and the relief conferred by section 2 and the whole legislation being brought forward and sold by Deputy Shatter in particular is on the basis that it provides widespread relief to people who cannot get relief already and assists in reconciliation.
In relation to the cruelty business mentioned by Deputy Taylor, at the present time that constitutes a ground on which a person, either husband or wife, could get a decree of judicial separation. Under the provisions of this Bill as now decided today by vote by the committee, in addition to cruelty you need to mention the business of irretrievable breakdown which is a bar to many people actually seeking judicial separation. I have considered this in the context of merely advising clients, women particularly who may be quite innocent parties to a marriage problem, who will want to have the very good relief which is provided in this Bill, and which I have always admitted is provided by this Bill, in relation to property rights, maintenance, etc, who for emotional, psychological reasons or religious reasons will not want to say that the marriage is irretrievably broken down but nevertheless will see great need for a judicial separation but will nevertheless be advised by lawyers, who must advise conscientiously, that they will have to say the marriage has irretrievably broken down.
It is not for any legislature to force on people a vague philosophical concept which people do not want to accept themselves. There will be a significant number of women who will want the relief. We might be paternalistic about this and say that these women will be quite stupid. If that is what people want to say about them, that is their privilege, but there will be women out there who will want the relief and yet not be willing to say that their marriage is irretrievably broken down. It is regrettable that the committee now is discussing, at Deputy Shatter's beckoning, provisions which he says are improving the situation when, in actual fact, we have now gone into a phase where we are actually closing the doors off for many applicants for judicial separation on psychological and the other grounds mentioned by me.
In relation to an allegation against a member of this committee, Deputy O'Donoghue, that he was suggesting that people would frivolously engage in obtaining decrees under this legislation, people do not frivolously look for judicial separation. The conclusion of my privious remarks would be that they will go in for the substance of the relief under this Bill, they will go into court and will go to lawyers to have it set up but, unfortunately, now they will have to frivolously say that the marriage has irretrievably broken down, as icing on the cake in relation to the proofs, so that they can get the various reliefs. The people who either do not believe, or are not prepared to say for one reason or another, that their marriage has broken down, are effectively barred from the relief in this Bill and of course by virtue of section 1 are barred from the limited relief which is available at the present time.
Far from pushing out the boat in relation to judicial separation, this legislation now is emerging as a very narrow philosophical strait-jacket which is being forced on people in relation to getting across a concept in the minds of the people and it has very little to do with getting substantial relief for people.
I am going to resist the temptation to respond at length to what Deputy Abbott said. There is always a problem in a committee such as this or in the Dáil that on occasions one is tempted to resort to non-parliamentary language that is not necessarily logical but it is the most immediate response one can give.
I am not going to re-open the debate on section 1 which has been accepted by the committee and has been voted on.
There was no vote against the section.
We are primarily dealing with a number of amendments. I would be concerned that a message should not go out from this committee meeting today to suggest that, as a result of this Bill, either women or men who have marital difficulties will in some ways be put in a more difficult legal position if the Bill is enacted than they are at present. Every single professional group working in the area of marriage breakdown, be it working in the area of marriage guidance counselling, be it working in the area of mediation, be they solicitors, the family law associations and all the other groups who have made submissions, have accepted that this Bill will provide a great deal more support and help than exists under the current law. It is regrettable that Deputy Abbott should keep coming back trying to flog a dead horse on this issue.
(Interruptions.)
Chairperson
Order.
To come back to the actual crucial amendments before the committee at this stage which now consists only of Nos. 7 and 8, there have been various comments criticising the wording of the amendments. Quite frankly, nobody has been very specific about it. There have been vague generalities of criticism but nobody has been specific. Deputy Abbott was criticising the fact that this was a deeming provision. The Minister's amendment, which fell, does not say "deemed" but it does say "shall be treated as". As a lawyer he would agree that there is not a great deal of difference between "shall be deemed" and "shall be treated as". It is quite short and I would like to go through it again.
Yours is "made".
Yes, "made" leaving the option to the court. I am not proposing to make it obligatory on the court. I am leaving it open to hold that they were living separate and apart——
On a point of information, in some instances the court has held that "shall" means "may" and sometimes "may" means "shall". Could I ask Deputy Taylor whether "may" is "shall" or otherwise?
Chairperson
Point of information taken.
I can hardly say "shall". "Shall" is more imperative and would take away the discretion of the court. I am leaving it open to the court to hold that there can be separateness and apartness. Those words are not my words; they are the words in the Bill. I am trying to be helpful in these two amendments. I thought the two provisions I had were reasonably and simply drafted. I quote:
. . . provided that the parties to the marriage may be deemed to have lived separate and apart from each other notwithstanding the fact that they may both have remained in the family home throughout the relevant period.
There is a very simple statement. Like Deputy Cowen, I do not profess to be the font of wisdom on these issues at all. Many of the Deputies agree that there is substance in the point I am trying to make. Nobody is being terribly specific in their criticism of my wording. I have said that it probably will be that when the Minister moves his amendments on Report Stage the wording may well be better. I want to see his wording first; that is all. I do not think that is an unreasonable request. With the resources at the Minister's disposal being more expertise than mine, the probability is that his wording may well be better. If it is, I will not have the slightest hesitation in deferring to it and adopting his. All I am saying to the committee is the only words we have before us are mine. They are reasonable enough. I do not think there is anything untoward in trying to meet a situation that could possible arise. I ask the Chair to put the amendments now and hopefully they could be agreed to by the committee on that basis.
Chairperson
I am now putting the amendments to section 2.
If this amendment is rejected does this prevent a further amendment of this nature being tabled on Report Stage?
Chairperson
No.
If these amendments are accepted does it prevent——
Chairperson
No.
Amendment put.
The Committee divided: Tá, 2; Níl, 13.
Amendment declared lost.
I move amendment No. 8:
In page 4, subsection (1) (e), line 41, after "application;" to insert "provided that the parties to the marriage may be deemed to have lived separate and apart from each other, notwithstanding the fact that they may both have remained in the family home throughout the relevant period;".
Amendment put.
The Committee divided: Tá, 2; Níl, 13.
Amendment declared lost.
I move amendment No. 9:
In page 5, subsection (1), between lines 4 and 5, to insert the following paragraph:
"(g) that the respondent has treated the applicant in a cruel, humiliating or degrading manner.".
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 5, between lines 4 and 5, to insert the following subsection:
"(2) Without prejudice to the generality of the foregoing, the tribunal may grant a decree of judicial separation where in all the circumstances of the case it would be just and equitable to do so.".
Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 5, subsection (2), line 6, after "section," to insert "other than the fact mentioned in subsection (1) (d),".
Amendment agreed to.
I move amendment No. 13:
In page 5, subsection (2), between lines 8 and 9, to insert the following paragraph:
"(b) If the Court is satisfied on the evidence of the fact mentioned in subsection (1) (d) of this section, the Court shall grant a decree of judicial separation.".
Amendment agreed to.
Amendment No. 14 not moved.
Question put: "That section 2, as amended, stand part of the Bill."
Section 2 (1) provides for an application for a decree of judicial separation. It is to establish that the marriage has broken down irretrievably. An applicant shall prove to the satisfaction of the court one or more of the following facts. If you have a situation then that the applicant does prove one of those facts have they not then established irretrievable breakdown? Whence then is the direction or purport of subsection (2)? It seems to go somewhat in a circle. Section 1 which we have now adopted says that it is based on irretrievable breakdown. Section 2(1) says that you establish irretrievable breakdown by proving one of the following facts. You then prove one of these facts. I am a bit puzzled to know why that is not the end of the matter.
I share Deputy Taylor's view in so far as one can see the proceedings going forward in terms of issues and a court could easily set out the first issue in relation to section 2 (1) or any of the paragraphs in relation to proving facts and if any of the facts referred to in paragraphs (a) to (f) have been proven — that is the issue in relation to irretrievable breakdown — judges may take the very technical view. This may be arguing into absurdity but, like Deputy Taylor, I would like guidance on it. It appears that the judge could be quite open to the view that the issue in relation to the first question has been decided in favour of irretrievable breakdown, the matter is now res judicata and on the record of the court or about to be put on the record of the court. In that event the second question does not arise. The alleged and much vaunted protections spoken about by Deputy Shatter contained in subsection (2) would not come into effect.
The court, in effect, is being asked to establish a set of facts and then go on a hunt at large in relation to whether these facts are really proven by examining all the circumstances and all the evidence. Looking at it from the point of view of the unfortunate parties putting forward their proofs, it is not possible to say what proofs would be necessary to bring forward all the evidence. Will it be an onus on an applicant to bring forward all possible evidence that a court might expect or that the applicant would think that a court might expect? If so, where is it all to end?
Alternatively, does the onus go beyond the applicant altogether and is the onus on the court of its own motion to go after all the evidence referred to in subsection (2)? There may be some judges who would say: "I will, on my own motion, go after all the evidence. I will instigate an inquiry. I will summon witnesses who may not be summoned by either party to carry out this inquiry." One could envisage very, very rigorous inquiries carried out by judges which would result in a Kafka-esque situation where this trial on the marriage could go on indefinitely or for a long period. It would be quite oppressive to people who are looking for mere simple relief of a judicial separation which can be decided at present without any amending legislation in fairly expeditious proceedings.
Deputy Taylor is correct to probe this matter and seek answers. It is a very puzzling concept indeed. Despite what might be said about the legislation, there will be many meritorious applications under it, and I hope there will be. I would hate to see a vague type of provision such as this being used by skilful and imaginative lawyers actually to frustrate the beneficial aspects of this legislation as it might emerge. Certainly it would seem to provide great fruit for exploratory technical points in the first few months or years of the legislation.
This brings me back to the point I made initially in relation to section 2 (1) (f), that it lacked sufficient clarity to enable lawyers operating on the conventional basis to put their case clearly and with no element of ambivalence. This procedure will not be facilitated by the legislation in subsection (2) any more than it has been facilitated by subsection (2) (1) (f) and ultimately one will depend on the good sense of the courts to make the rules here.
While one could speculate into absurdity in this committee one would have absolute confidence that the courts would not allow this legislation to drift into absurdity within the four walls of the courts and the judges would retrieve the situation, but if they do so by putting a sensible interpretation on this, then in doing so that interpretation will involve the judges in making the rules. It is very very remiss of the Oireachtas, and this committee representing the Oireachtas, to leave such a vital area open to lawmaking by judges. We are certainly walking away from our responsibility if the worries of Deputy Taylor and my worries prove to be correct.
Chairperson
I would like to go into private session at 5.50 p.m. to discuss some procedural matters, if the committee is in agreement. Is that agreed? Agreed.
I believe we have now come to the kernel of the matter. We believe, and I have said on a number of occasions, that there are portions of this Bill, especially 2 (a) to (e) which offer considerable solace to a great number of people and we have totally agreed with those. Deputy Shatter has to be questioned very closely as to why he is insisting in including irretrievable breakdown in the Bill. He should tell us precisely what this achieves because it would appear there is no logical reason why the words should be included in the Bill. Deputy Shatter should spell out clearly why precisely he is insisting on this phrase being utilised in the Bill.
It is fair to say that were it not for this phrase "irretrievable breakdown" and the question of it being reasonable for people to wish to live apart from one another there would have been a consensus on this committee in relation to section 2. In other words, if Deputy Shatter had not insisted on the inclusion of "irretrievable breakdown" and this other concept of wishing to live separate and apart this committee would have unanimously agreed the other provisions and would have welcomed them.
I would like to ask him one further question. He states in subsection (2) unless the court is satisfied on all the evidence that the marriage has not broken down irretrievably it will grant a decree of judicial separation. How precisely does this differ from the court being satisfied that the marriage has broken down? Is he saying the court must be satisfied that the marriage has broken down or that it need not be satisfied that the marriage has irretrievably broken down? To say the least, there seems to be a considerable amount of confusion on this.
I would like to make a number of brief points.
Deputy Abbott said that he did not want to speculate——
On a point of order, we have passed the time you wished to go into private session.
I though we had another minute.
——into absurdity. He is becoming the master of the absurd in some of the speculations he is engaging in. On some occasions he and his colleagues seem to be criticising the Bill on the basis it would allow judicial separation on demand while on the other side he is now criticising the Bill by saying it will make it far more difficult for everyone to get a decree of separation. Not only is there a legal inconsistency in what he is saying, but there is a logical inconsistency of a schizophrenic nature in debating terms, which I suppose may derive from the fact that he is adopting two persona on this committee at the moment.
It is difficult to take seriously some of the remarks that have been made. Let me deal with the particular issue Deputy Taylor correctly raised and which should be responded to, that is, section 2(2). Section 2(1) provides six facts.
Progress reported; Committee to sit again.
The Committee went into private session at 5.50 p.m.
The Committee adjourned at 6.10 p.m. until 4 p.m. on 18th May. 1988.