Deputy Shatter was in possession.
SECTION 2.
Question again proposed: "That section 2, as amended, stand part of the Bill."
Chairperson
We discussed section 2 at great length and we did so in the context of the various amendments that were tabled. Section 2, as I previously explained, complies fully with the report of the Joint Oireachtas Committee on Marriage Breakdown. That report recommended that "irretrievable breakdown" of marriage should be the overall ground for the granting of a decree. It set down that there should be six basic facts, one of which could be used to establish "irretrievable breakdown". These facts are recited and recorded in section 2 of the Bill and form the foundation stone of the Bill together with section 1 which lays down "irretrievable breakdown" as the basis for getting a decree. It is worth pointing out the important changes that this provision will make in existing law because in the context of the debate we have had about section 1 the importance of the provisions contained in paragraphs (a) to (f) has been somewhat lost in the disagreement that emerged in this committee during the course of recent meetings.
Under current law a spouse can obtain a separation decree if the other spouse is guilty of adultery or of cruelty or unnatural practices but there are a number of peculiar anomalies about the law as it stands at present in that it is not generally understood that the position is at present that if a husband deserts his wife, no matter for how long, the wife cannot go to the courts and get a decree of separation. Equally if a wife deserts her husband it is one of the curiosities of our law at present that even if he is deserted for one or two years, ten years or 20 years he cannot formally get a decree of separation. This Bill will permit a decree of separation to be obtained by a deserted husband or wife and on establishing that they have been deserted for at least one year immediately preceding the commencement of separation proceedings it would be open to a court to decide that that one year's desertion is clear evidence that a marriage has irretrievably broken down. There are thousands of wives and husbands whose marriages have broken down for many years and who are currently denied any legal remedy in our courts. Many of them would like to have the possibility of obtaining a separation to create a judicial recognition of the fact that the marriage has broken down. They will be able to avail themselves of this provision in the Bill and obtain a separation decree. That is a very fundamental legal change which this Bill will implement. It is noteworthy that in the context of the thousands of wives who are currently in receipt of deserted wives' allowance their marriages, in effect, are recognised as having broken down by the Department of Social Welfare but they cannot get judicial recognition of that fact currently through our courts and for many of them an opportunity to get a decree of separation will be welcomed.
The other provisions in section 2 (1) will allow a decree of separation to be granted in a number of different circumstances. The first is where spouses have lived separate and apart for at least one year. When they present a separation application to the courts they will be able to get a decree of separation on the basis that they consent to a separation and they have so lived apart. Many couples who separate and who agree on a separation currently conclude deeds of separation and do not have to get involved in court proceedings. There are some couples who separate by agreement but who cannot agree about anything else. The cannot agree on what is to happen to the family property or on what maintenance or support payments should be made. They may not be able to agree about issues relating to their children, be it who should have custody or what visitation rights the non-custodial parent should have. The may not be able to agree as to what school a child should be educated in. At present, couples who separate by agreement but who seek to resolve all of those matters, if they cannot do so between themselves, find they are embroiled in two or three different sets of court proceedings.
Under this section and in the general approach taken by the Bill, such couples, as in the case of couples in the other circumstances referred to in section 2, will be able to get decrees of separation in such circumstances but in the one legal proceeding without being put to the expense of embroiling themselves in two or three different and separate court actions, they will be able to have all these other matters relating to family property, maintenance and children resolved. That is something that would be very much welcomed. From the reaction of many of the groups outside the House to date, I know there is a great deal of support for this approach.
Paragraph (e) will allow a separation decree to be granted where a couple have been living apart for three years and again where such a separation decree is sought, the courts will under the other powers contained in this Bill, be able to make all the necessary orders to provide protection for dependent spouses who most often will be dependent wives and their children. It is no harm to refer to the fact that for the first time, when this Bill becomes law, our courts will have comprehensive powers to protect the position of dependent wives and children which are a good deal more comprehensive than those currently conferred on the courts under existing law. We will deal with that in some detail at the next stage of the Committee Stage process when we come to deal with Part II of the Bill.
Section 2 (1) (f) seeks to ensure, together with paragraphs (d) and (e), that in the overwhelming majority of instances where a couple have to resort to the courts to obtain a decree of separation, the courts will not be put into a position where they have to identify one or other of the spouses as the party solely to blame for the breakdown of the marriage. One of the things that the Joint Oireachtas Committee on Marriage Breakdown discovered at an early stage in their deliberations, as a result of the many submissions they received both written and oral and indeed as a result of the views expressed to them by many of the professional groups who work in the area of marital breakdown, was that in most instances it takes two people to contribute, either consciously or unconsciously, to a marriage breaking down. It is very rarely the case that it is the fault solely of the husband or of the wife that a marriage breaks down. Many of these groups pointed to the debilitating effect current law has on family relationships in that it is very important to be aware of the fact that when a marriage breaks down, an estranged couple who cannot live together as husband and wife may very often have to co-operate with each other for many years not simply as spouses but as parents of young children. The estranged spouse who can no longer live with the other spouse — the husband who cannot live with his wife or the wife who cannot live with her husband — remains the parent of their children. The law often makes what is already a bad and difficult family situation where a marriage has run into tremendous difficulties a great deal worse. The current law frequently pours oil on troubled waters and exacerbates a bad family situation instead of ameliorating it and in a sense adds to the family conflict. By virtue of the provisions contained in section 2 (1) (d), (e) and (f) over 90 per cent of couples who seek a decree of separation will be able to do so by factually establishing before the courts either that they are already living separate and apart — that of itself is indicative that the marriage has broken down — and they have been doing so for such a length of time as to confirm the breakdown or that they are living in such disharmony within the family home, a disharmony that they can both equally accept they may have contributed to, that it is not possible for them to continue to live together. It will be open to the courts to grant decrees of separation on the conclusion that the marriage has irretrievably broken down without being obliged to label a husband or wife as guilty or innocent. In this context, I believe there is considerable support outside this House and within this House for the view that our courts should be able to examine the reality of a family's relationships at the time when a husband and wife come to court and determine whether a marriage has or has not broken down, without having to engage in a lengthy historical analysis of what has been going on throughout the marriage so as to try to identify which spouse should be labelled as the guilty partner for causing a marriage to break down.
As I said when I started speaking, the provisions contained in this Bill and in particular in sections 1 and 2, reflect accurately the unanimous views supported by all parties in this House, being both the Government party and the Opposition parties, as they were expressed in the Joint Oireachtas Committee on Marriage Breakdown report. I know from submissions I have received from a variety of groups outside this House who are involved in working with couples whose marriages have broken down that these particular provisions contained in this Bill have widespread support and have been widely welcomed. I know we have gone through some difficult stages in dealing with the Bill and teasing out its provisions, but I would hope that members of all parties on this committee would now accept and support the provisions as contained in section 2 together with the amendments that have been made to that section which were incorporated in it the last day this committee met. I would hope that we could today agree to accept section 2 in the terms contained in the Bill and move on to deal with amendments that have been proposed to section 3.
Chairperson
Before I let anyone come in, I understand that a number of members have difficulty about leaving early from the meeting. I take it that you are all okay in relation to that?
Could I ask to what time it was agreed to continue this meeting?
Chairperson
We did not agree anything in particular but the normal thing is from 4 p.m. to 6 p.m. I understand that a number of you have to leave early.
There are a number of trains leaving shortly after 6 p.m. I think we should make some arrangement. I propose 5.30 p.m.
I second that.
Could I make a suggestion that possibly might be helpful? Yesterday we postponed our meeting until today to facilitate the Minister. I very much appreciate the difficulties the Minister had yesterday. I accept that if this Dáil goes into recess in June — I do not know what the date will be — we will have great difficulty in completing this Committee Stage. Perhaps we could take time out for a few minutes to deal with today's meeting and future meetings. It might be appropriate at this stage. I would be anxious that we could arrange a number of full day meetings during the month of July, if this would be appropriate, and would facilitate members of this committee and the Minister when the Dáil is not in session and which would allow us to get on with processing the Bill. It is very difficult for members to come in and out for two hours and then revert to this every second week or so. In the context of members today if it would facilitate members — we arranged for a Thursday session at short notice — I would have no objection to today's meeting being put back to next Wednesday from 4 p.m. to 6 p.m. if that facilitated the Minister. I would be very anxious that by next Wednesday we would clarify what arrangements we can make for July sittings so that we do get on with completing the work. In the context of today's meeting, Deputies may have other commitments. This meeting was arranged at short notice. My concern yesterday and I think some members who were present will accept that, was that if we transferred from yesterday to today it might facilitate the Minister and, indeed, myself, but that other Deputies would be caught out on that. It appears that that may be the case. There are now other members of this committee who appear to have major difficulties with today's sittings.
Chairperson
Perhaps we will hear from some of them.
Firstly, I want to thank the members of the committee for being kind and gracious enough in facilitating me yesterday. I could not be here and those who were not kind and gracious, I forgive. I hope the press will carry that in the same way as they carried Deputy Shatter's remarks on my absence yesterday and my priorities, which are totally untrue. There is a problem and it affects each and every one of us. I understand that one or two members have to leave early today I would suggest that we still do our full meeting. We should go ahead until 6 p.m. but those members may pair off. That will maintain the voting balance. If Deputies Barrett and O'Donoghue have to withdraw at 5 p.m., let them go but we stay here and work away until 6 p.m.
I want to put on record that I regard this as very serious legislation and it is grossly unfair that the earliest notice I got of this meeting was this morning at 12 noon when I had arranged other meetings for this afternoon. It is totally unsatisfactory bringing in substitutes who perhaps have to sit in and have lost the continuity of the debate. If we are going to treat this Bill seriously, a week's notice is the very minimum that we should get. I do not like to have to stand up and leave a meeting but when you have made previous arrangements—
We are wasting valuable time on this.
I do not want to leave. The reality is that we are here in a Whip situation and let us not put a tooth in it. If we are going to have this Bill debated properly we should have representations from the parties who are supposed to be here. How can you expect somebody to be here when they get an hour or two notice?
Chairperson
The best thing is to proceed and the Minister indicated——
I would like to know before you proceed, on what basis can meetings be called? If that is the case I could have been somewhere else and not know that the meeting was on. On what basis is the actual notice of a meeting delivered to you? On what basis is a meeting called? Who can call a meeting? Can we suddenly find that a meeting is taking place and that the notice never arrived to you? It is important. We are dealing with legislation.
Chairperson
There was a unanimous agreement here yesterday by all the committee that were present to have the meeting today at 4 p.m. A notice was sent out immediately after the meeting and indeed I got my notice last night, so I was aware of it. I think every other member got their notice.
As you are well aware, I was in the Dáil from 10.30 a.m. until 10.30 p.m. dealing with the Intoxicating Liquor Bill. I fail to see how you can be in two places at the one time. When I came out at 10.30 p.m. I went home and this morning at 12 noon I discovered there was a meeting of this committee, and I had other appointments for this afternoon. I would like to know before this meeting continues, on what basis can a meeting of this committee be called? Can it be called in such a way that members do not know it is taking place? Under what Standing Order do we call committee meetings? There is a procedure in the Dáil for the announcement of the Order of Business. There is no procedure here. This is the same as the Dáil Chamber except that we are meeting in a different room. We operate under the same Standing Orders and the same rules. I would like to know through you, Chairman, and perhaps the clerk of the committee could inform you, under what Standing order can meetings be called? What notice has to be given? Is the business ordered the same as business in the Dáil is ordered so that people know that meetings are on?
If somebody gets a bright idea to have a meeting this afternoon, we might not be around here and two or three people could turn up and sections of this Bill could be debated and perhaps defeated and none of us even knows the meeting is on. There must be some Standing Order to deal with this and I would like to know what it is.
Chairperson
The Standing Orders are such that at the very first meeting is was put to us how often would we meet. It was agreed that we would meet fortnightly on a Wednesday at 4 p.m. for two hours.
Today is Thursday.
Chairperson
That was the case. For two Wednesdays we did have a problem in that the Minister was not available and, indeed, other members, including yourself, were not available because of the Courts Bill and also because of the Intoxicating Liquor Bill. To be fair to the rest of the members here yesterday we were caught in a situation where the vast majority of the people who are on this committee were interested, including myself, in the Intoxicating Liquor Bill. I was here yesterday and it was agreed without any dissent yesterday that we should adjourn to today.
That may have been agreed, but on what basis are meetings called? On what basis can meetings be called and what Standing Orders apply?
Chairperson
The committee decides.
The committee cannot decide. This is a committee of the Dáil. It operates under Standing Orders of the Dáil. One cannot suddenly call a meeting of the Dáil without proper notification, neither can one call a committee of the Dáil dealing with a Committee Stage of a Bill without notification. We just cannot decide we are going to have a meeting on Sunday afternoon because somebody thinks it is a good idea. We should be doing our business in a proper orderly fashion that fits in with other business in the Dáil. I do not want to get into a wrangle with the Minister. The Minister and I are in the Dáil. Deputy Colley is a spokesperson on Justice and so are Deputies Taylor and McCartan. Are we going to be told there was a meeting this afternoon of the committee and none of us knew about it? There must be a procedure for calling meetings. I would like to know what it is before we proceed.
There is a very fair point being made there. I am not a member of the committee but I am standing in. People had arranged for substitutes yesterday. Twenty-four hours is inadequate notice to give of a change in a meeting of a committee which is of such significance. People would have made proper arrangements for the Wednesday but they would not have anticipated needing to do so for the following day, if for some reason they were not able to be present.
For the information of the Deputies who were not here yesterday, originally it looked like there was not going to be agreement on adjourning at all. As the Minister said, remarks were passed as to why he was not here or why certain Bills should be taken before others. At the end of the day, there was a sort of concession made that we would meet today because if we left it for another two weeks we could be accused of delaying matters, along with all the other unsubstantiated things that have been said about our performance on this Bill. I agree with Deputy Barrett, Wednesday suits everyone. If Deputy Shatter was Minister for Justice he would have been involved with the Intoxicating Liquor Bill and he could not be in two places at the one time either.
Chairperson
We will proceed. From day one it was agreed that we would meet fortnightly but we adopted a flexible attitude. Indeed, Deputy Shatter has been asking for weekly meetings. We have been asking for meetings other than when the Dáil is in session. The whole thing is flexible and it was on that basis that it was agreed we would meet today.
It should be said that yesterday Deputy Shatter tried to create the impression that the Bill was being treated in some kind of a slipshod manner by this side of the House. He said the Minister for Justice should be here. It has to be pointed out in fairness to the Minister that the Opposition spokesman on Justice, Deputy Barrett, was in the House, Deputy Colley was in the House as were Deputies Taylor and McCartan. Deputy Shatter singled out the Minister for what I would consider grossly unfair publicity. It is my view that he owes him an apology for that.
Chairperson
Before we get into any arguments, we should proceed. I ask the Minister to very briefly respond to that.
I made the point yesterday that it is quite normal practice when a Minister is unable to be present to process legislation for another Minister to be appointed in substitution, as the Minister did with Deputy Michael Woods on the Courts Bill. I am anxious to get on to deal with this Bill but I would make the point that on this side of the House we arranged for a substitute to be present yesterday for Deputy Barrett.
One thing which emerges from that last 15 minute discussion is the difficulties which party Whips have to endure when they are trying to order business in the House. We will get back to the Bill. As this committee is concluding its consideration of section 2 of the Bill, I want to make a few general remarks about my position on it. Section 2 (2) requires in addition to the facts set out in paragraphs (a) to (f) that the court be satisfied that the marriage has irretrievably broken down. By now the committee will be well aware of my position in relation to the use of irretrievable breakdown in separation proceedings under this Bill. Regrettably the committee has, on a vote, decided against my amendments Nos. 1 and 2 which would have deleted that concept from the Bill. Accordingly, there is nothing to be gained by my reopening the debate on that concept at this stage, though I am tempted to do so not only in view of Deputy Shatter's remarks outside this committee that he does not understand the reason for my amendments but also his repeated advertising to the public that under his proposals spouses will not have to make allegations against one another.
A few simple truths which have been very carefully avoided by Deputy Shatter are that the Bill requires that the fact of adultery, unreasonable behaviour and desertion may have to be proved and hence allegations must inevitably be made against a spouse by the other spouse when he or she applies for a judicial separation on one of these grounds and pleads the case in court.
Another matter which I adverted to earlier in the debate and which the Deputy has ignored, is that section 2 (2) departs significantly from the recommendations of the Joint Oireachtas Committee on Marriage Breakdown. The Committee did not recommend that a spouse be required to prove irretrievable breakdown in addition to the fact of, say, adultery or unreasonable behaviour. Indeed, my proposals in amendments Nos. 1 and 2 were, in effect, closer to the proposals of the Committee than those in the Bill. The Committee proposed that once adultery, unreasonable behaviour or separation is proved the court should grant a decree. That is exactly what I proposed. Apart from section 2 (1) (f), I differ from the Committee only in so far as the Committee recommended that proof of any number of facts should be proof of irretrievable breakdown.
Since the Bill already requires the court to address itself to the possibility of reconciliation there is no need to have the requirement of irretrievable breakdown in section 2 (2). The English divorce courts have long recognised that there is no point in investigating whether a marriage has irretrievably broken down because who is to say that the allegation is true or false. The only practical solution is to adjourn the proceedings to enable attempts to be made to effect a reconciliation. Even at this late stage, the Deputy might wish to note these and other points I have made in the debate and address himself more to their merits.
Acceptance of amendments Nos. 1 and 2 would, of course, have involved not just the deletion of sections 1 and 2 but also their replacement with provisions which would require only proof of the fact of adultery, unreasonable behaviour, desertion or separation. They would also have involved the deletion of the grossly inadequate and vague provision that is section 2 (1) (f), and its replacement with a provision that addressed itself to the problem of those who have actually separated under the one roof and could no longer be regarded as living with each other as husband and wife.
Deputy Taylor's amendments Nos. 12 and 13, which I supported and are now part of the Bill, mean that in the case of separation at least there will be no requirement to prove in addition that the marriage has broken down irretrievably. Unfortunately the effect of those amendments will be somewhat less than what would have been achieved by my amendments which the Deputy seemed to speak in favour of but voted against. Nevertheless his amendments are a step, but only a step, in the right direction.
I have perhaps said enough about section 2 and for that matter section 1 to indicate that certain of the provisions therein would not make good law. I propose to let the matter rest at that for the present.
Question put and agreed to.