I move amendment No. 15:
In page 5, subsection (1), lines 24 and 25, to delete "respondent" and substitute "applicant".
This is a technical amendment. There was an error where "respondent" is referred to but where "applicant" should have been referred to in the draft. I formally propose that we delete the word "respondent" in page 5, subsection 1, lines 24 and 25 and substitute the word "applicant".
On behalf of Deputy Taylor, I concur.
Amendment No. 16 in the name of Deputy Harney is out of order. It involves a financial charge on the Revenue. Amendment No. 16 not moved.
My intention was to oppose the section if amendments Nos. 1 and 2 were carried. However since those amendments were defeated and since it is necessary to retain subsection (3) of the section in the Bill — my amendment No. 1 would have retained that provision — I will not oppose the section now but will reserve my position until a later stage. For the present, therefore, I might just give a broad outline of my position on subsections (1) and (2) of that section. Although cohabitation as a bar to a decree for judicial separation is abolished in section 32 of the Bill it is retained in a modified form in these subsections despite the intention, according to the explanatory memorandum which accompanies the Bill, that the provisions in section 3 and 32 remove obstacles to reconciliation.
I do not consider it good policy that a spouse should in any way be denied a judicial separation merely for trying to hold on to his or her marriage after the other spouse has committed adultery or has behaved in such a way that the applicant cannot reasonably be expected to cohabit with him or her. It may be that in certain circumstances a spouse would require more than 12 months after the other committed adultery to see if there was any hope of effecting a reconciliation or he might wish to put off applying for judicial separation for as long as possible for the sake of the children and periods spent in cohabitation in such circumstances should not be a bar to a judicial separation decree.
If I might very briefly respond to that, under the Minister's original proposals a wife or a husband, if their spouse had committed adultery on one occasion 25 years prior to issuing court proceedings, could have issued court proceedings and sought a decree of separation based on that single act of adultery or single occasion in which the husband or wife strayed outside the marriage relationship. I think, and anyone who has worked in this area of marriage breakdown would be of the view, that a couple cannot have a normal marital relationship if one or other of them knows that if on one occasion they strayed and did something wrong, despite the fact that the problems that occurred within the family as a result of that behaviour have been resolved, forever more there will hang over their head the possibility that that one marital aberration or that one straying outside the family bed could be kept as a stick to beat them with over their heads for many years and could be relied on 10, 15, 20 or 25 years later for the seeking of a decree of separation. It is, I believe in the interests of the husband and wife that when they do resolve their differences that one or other of them cannot some years later rely on some single instance that occurred during the marriage to create difficulties for the other party to that marriage.
This provision in section 3(1) would allow a husband or a wife where the other does commit an act of adultery to seek a decree of separation. If the court was of the view that the marriage had broken down, a decree could be granted but it would not allow a husband or a wife to rely on a single act of adultery over a year after it had been committed as being sufficient of itself to grant a decree. If during the course of the marriage other problems arose, the fact that a husband or a wife had engaged in an extramarital relationship could be one of a number of things that an applicant spouse could rely upon to seek a decree of separation on the basis of trying to establish that the family and marital circumstances were such that it was reasonable that separation be effected. This provision does not try to force couples into the courts, it seeks to ensure that couples will not unnecessarily go to court, that they will resolve their differences; but when they do that one cannot many years later cast stones at the other simply because of a single incident that occurred during the course of the marriage.
I am very surprised that the Minister would disagree with this provision. It is a provision that is common in most countries in the world who have reformed their marital laws. It considerably changes the current law. It does, I believe, accord with the thinking of the Joint Oireachtas Committee on Marriage Breakdown. I know the Minister is not opposing this section. I would say to him that this term of one year referred to in it is not something that is necessarily the ideal period. Maybe it should be a longer period referred to in that section. Maybe it should be one, two or three years that is referred to in section 3(1). One year is the usual sort of time span that other countries in the world provide in dealing with this sort of approach.
If during Report Stage the Minister comes to the House with an amendment in which he suggest that one year period should be extended somewhat I certainly would not see that as something that would be necessary to oppose or it would not be something that I would necessarily disagree with. It may very well be that we could on Report Stage consider whether the period referred to there should be two or three years rather than one year.
I just do not believe it should be possible in a marital situation to let a situation lie where some 25 years after a husband or a wife had one single incident of straying outside the marital home they were at risk of that being relied upon to bring the marriage completely to an end. I do not think that. I think that is inimical to reconciliation and is contrary to the approach that most people believe is necessary in helping couples not to separate but to resolve their marital problems.
I agree with Deputy Shatter and Deputy Barnes and others when they said that people do not seek judicial separation unless their marriage is in difficulty and that they would be serious about it. It is to travel off into the world of fantasy to start saying that a person would apply for a judicial separation because her husband committed adultery 25 years ago. It is a cold and clinical attitude to the problem. It is in many ways a cynical approach to a very complex problem and it is something which should be nailed at this stage. I believe it deserves to be labelled as the world of fantasy. If an individual seeks a judicial separation and has lived with a person for 25 years in the knowledge that that person has committed adultery it can be taken as a definite fact that they have had some other problems in the marriage. Let us try and treat the thing somewhat seriously and not start suggesting that an individual, because her husband committed adultery 25 years ago, would go off seeking a judicial separation. It may be all very well in legal theory but in the real world this kind of argument does not exist and I would say to describe it as nonsensical would be to understate it.
In the rare case referred to by Deputy Shatter where there is a doubt as to whether or not the marriage has irretrievably broken down, even though the fact of adultery has been established, the only practical solution under the Bill as it stands — and this is borne out by commentators on the position under the divorce jurisdiction in England where there is a similar provision — will be for the court to adjourn the proceedings to enable attempts to be made to effect a reconciliation.
I have said on a number of occasions my definition implies the possibility of reconciliation. The negating of this possibility which is what I think Deputy Shatter would appear to be now suggesting, is in my view a terribly retrograde step and is applicable to divorce legislation, not to legislation such as this. This Bill does not put an end to marriages. This Bill provides for a separation and inherent in that, be it linguistically, theoretically, practically or otherwise, is the fact that reconciliation provisions are an essential ingredient in this kind of legislation. They are not an essential ingredient in divorce legislation but they are an essential ingredient in judicial separation because per se it implies that.
