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Special Committee on the Judicial Separation And Family Law Reform Bill,1987 debate -
Thursday, 9 Feb 1989

NEW SECTION

NEW SECTION.

Chairperson

We have amendment No. 1 in the name of Deputy Taylor and as amendments Nos. 2, 3, 4 and 5 are alternatives, I propose that we take these five amendments together.

I move amendment No. 1:

In page 4, before section 2, to insert the following new section:

"2.—(1) After the commencement of this Act the ground or grounds upon which an application for judicial separation (divorce a mensa et thoro) may be presented to the court by either party to a marriage and granted by the court shall be one or more of the following facts, that is to say—

(a) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent;

(b) that the respondent has committed adultery;

(c) that the respondent has deserted the applicant for a continuous period of at least one year immediately preceding the presentation of the application;

(d) that the parties to the marriage have lived separate and apart from each other for a continuous period of at least one year immediately preceding the presentation of the application and the respondent consents to a decree of judicial separation being granted;

(e) that the parties to the marriage have lived separate and apart for a continuous period of three years immediately preceding the presentation of the application;

(f) 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 co-habit with the respondent;

(g) that the marriage has broken down irretrievably.

(2) If the court is satisfied on the evidence of any one or more of the facts as are mentioned in subsection (1) of this section, it shall grant a decree of judicial separation.

(3) For the purpose of subsection (1) (c) of this section desertion shall include conduct on the part of one party to the marriage that results in the other party, with just cause, leaving and living separate and apart from the other party.

(4) Provision shall be made by rules of court for the purpose of ensuring that where in pursuance of subsection (1) (d) of this section the applicant alleges that the respondent consents to a decree of judicial separation being granted, the respondent has been given such information as will enable him to understand the consequences to him of his consenting to a decree being granted and the steps which he must take to indicate that he consents to the grant of a decree.".

This amendment was submitted and circulated before the new coalition between the Minister and Deputy Shatter took place. The amendment was devised as a possible attempt at reaching a compromise. In effect it proposes to take out the expression "irretrievable breakdown" as the one sole over-riding ground for application to the court for a judicial separation, in the sense of the artificial meaning that it was given in the original draft and to put it in simply as one of the possible grounds on which an application for judicial separation could be made on a parity, as it were, with each of the other sub-grounds, rather than have any artificial expression given to it. In other words, that the expression "irretrievable breakdown" would be given its ordinary interpretation and not an artificial interpretation as was originally the position.

In the course of the debate over the months on the Bill at various Stages we were told that this expression "irretrievable breakdown" just had to be, that that was the expression used in the joint Oireachtas committee and so it is. Even now, in the new situation it would be given in this amendment, just as one of the possible grounds on an equal and parity basis with the other grounds rather than as the over-riding ground with a special artificial meaning given to it, perhaps at least it is worthy of consideration. Many speakers, who expressed themselves to be knowledgable in this area, took the view that this was a very important expression and that it was essential to use it.

The expression introduced now on the agreement between the Minister and Deputy Shatter is that a normal marital relationship has not existed between the spouses for a period of at least one year. That is, in effect, the alternative form of words on which apparently agreement has been reached. In many senses, I suppose, from the practical point of view — these cases would reach court — the actual difference might end up as being one of pure semantics and not having any real difference in the eyes of a court as to the effect of what had occurred in a marriage.

As far as I know the expression suggested to us here now for the first time is a new one, the circumstance that a normal marital relationship has not existed inevitably raises the question in one's mind of what is a normal marital relationship. We have heard in law, of course, going back for hundreds of years, the expression "the man on the Clapham omnibus" as depicting the ordinary man on the street, the average person. Whether you can have what a normal marital relationship is, I suppose, is something that a court might be called upon to define or construe and I would think that perhaps different judges might take different views as to what it was. But knowing the courts and the judges and justices I believe they would take a practical down to earth viewpoint of each case as it came before them just as they would if the expression "irretrievable breakdown" of the marriage was concerned. That expression, too, has a lot to commend it provided it is given its ordinary natural meaning of the words rather than the artificiality it was given in the original Bill.

I am opposed to this amendment. I am satisfied that section 2 as it stands in the Bill, together with amendment No. 3 which has been grouped for discussion purposes with this amendment, will provide fully for all the circumstances in which a judicial separation should be obtainable.

First, I join with the Chairperson in thanking all the members of the committee, for agreeing to adjournments of meetings so that we could seek to hammer out the differences between us. I am particularly grateful to the other parties who were so tolerant of us to allow us to do that. I hope that the amendments tabled by the Minister and myself to this section will also commend themselves to the committee.

The objective of Fine Gael was to achieve a situation in which a couple who were totally incompatible and whose marriage had broken down could obtain a separation decree even while still residing under the one roof by going to the court and establishing that their marriage had broken down without being required to engage in name calling, without the courts having to label a husband or a wife as the guilty or innocent party, as the case might be. I am satisfied that the formula that the Minister and myself have come up with, which will amend section 2, in particular by the use of the concept in subsection (f) of establishing that a marriage has broken down to the extent that the court is satisfied that a normal marriage relationship has not existed between a couple for a year, will facilitate the court in so dealing with matters. I believe it is quite clear that that will allow the totally incompatible couple to obtain their decree.

I am curious at Deputy Taylor's remarks because the concept of irretrievable breakdown which we have now modified by agreement to adopt a different approach, did not appear to be anything to create confusion on his side previously. I would hope that he would have been a little more generous in acknowledging that substantial progress has been made in the last few weeks that will enable this Bill to now become law, I hope that the amendments we have jointly agreed will resolve the concerns and difficulties all Opposition Deputies had, including members of Fine Gael, and indeed the concerns and difficulties that the Government members had with the Bill. I hope that the amendments to this section tabled by the Minister and myself will commend themselves to the committee and I hope they will be seen as a very constructive and historical step forward.

In the context of Deputy Taylor's remarks I cannot help recalling that during the recommittal debate in the Dáil Deputy Taylor was opposed to re-committal expressing the view that the Bill would be buried and never seen again. We have now established on a co-operative basis that we could constructively work out our difficulties. I hope that the amendment we now have here on this section will be supported by the committee.

I would like, first, to commend the Minister and Deputy Shatter for having obviously put the interim period of this committee on its last adjournment to very good use. If I can signal an indication at this stage, if I could propose that we would agree all of the amendments in the name of the Minister and Deputy Shatter I would do so and perhaps then take some little time to look at the amendments in the various other members names to see how they would impact and if they were satisfactory. However, I understand Standing Orders require us to go seriatim through the sections and I do not want to delay.

We have achieved a great deal in the way we have gone about the business. We are back now at the position we were at on the first day when the Second Stage was moved and a signal from the other side of the table indicated that it could be taken in Government time and that there was unanimity on that. The legislation has not been interfered with or watered down in any way and it will stand as good working legislation. I would like to see it move with all haste. If one looks at amendment No. 2 we are down to the point of where we can get a full-stop corrected to a semi-colon. If the legislation is being looked at with this type of fine-tooth comb and attention, then we can at least be confident that a job is being done. I am happy with the amendments put down.

I would also like to put on record that I appreciate the work that has been done in the interim between the last time this committee met and now. A major step forward has been taken. The Bill as presented initally is substantially represented in the amendments that have been jointly agreed between the Minister and Deputy Shatter and I have no wish to prevent progress on that front.

I have tabled one amendment because I am particularly concerned not at the principle that is contained in the agreed amendment which would be to section 2 (1) (f), but because I believe the courts may face a substantial difficulty in defining what constitutes a marriage that has broken down. The concept of allowing a decree to be granted on the basis that the marriage has broken down and has been seen to be so for a period of one year is right. It is in keeping with what was in the Bill initially and what I supported.

The purpose of the agreed amendment is to allow a decree to be granted in the case of a marriage which has broken down, and which can be seen to have been broken down for a period of a year. That is moving away from a necessity to ascribe guilt to either party where there is no agreement to the decree being granted. There is another clause attached to amendment 1 in subsection 2 (1) (d) where, if there is agreement after one year between both parties then there is no problem, but we are dealing with what happens where the parties do not agree and where it must be brought to the court's attention that the marriage has broken down. The grounds that the Minister and Deputy Shatter are suggesting are that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for at least a year.

The difficulty I have is what is a normal marital relationship and what may a judge in court decide is a normal marital relationship? I would like to be helpful in this and say that I would not like to see difficulties arise in court simply because of drafting. I also believe that the amendment that has been put forward is very close in wording to amendment No. 1 i.e. in subsection 2 (1) (d) and that, therefore, there could be confusion in meaning between the two. In my amendment I have suggested what I believe to be a more definite approach to the matter. It states:

that the marriage has broken down and has not existed between the spouses for a period of at least one year immediately preceding the date of the application . . .

That is a more definite approach to the fact that the marriage has broken down. One is going into court and saying that the marriage has broken down and has not existed for a period of one year. That is the ground on which the applicant is claiming. It does not depend so much on the court's interpretation of it. It is, therefore, up to the applicant to bring forward proof that that is the case. It does not necessarily lead the applicant into blaming the respondent or, as we spoke about before, throwing the mud. It does not necessarily lead to that. It allows an applicant to go into court and say that the marriage has broken down, to name the circumstances, whether they be something that has happened in the home, that they are living separately or that they live in a different manner to what they did earlier in the marriage, again not ascribing guilt to the other party.

The wording as proposed by the Minister and Deputy Shatter leaves it too vague, wide and uncertain in its definition and there is too much left to the court to decide. I would prefer a tighter version. It would be helpful to add to it that the court is satisfied that it is reasonable for the applicant to wish to live separate and apart as being part of the claim that the marriage has broken down.

I ask the Minister and Deputy Shatter to accept that my wish in this is simply to help the process along. I do not wish to hinder it. I am very anxious to see the Bill passed in the general form it is in at the moment. I appreciate greatly the work that has been done on the Bill because, having read through the agreed amendments, it appears that many of the points that were brought up on Committee have been effectively dealt with, and more effectively dealt with than we got around to doing because of the pressures we faced in the committee, the publicity and so on. In fact, we have a better Bill here in whole than we had at the time we finished Committee Stage. I would ask both parties to seriously consider tightening up on the wording in this.

With regard to amendment No. 3, this follows a recommendation by the Law Reform Commission in its report on divorce a mensa et thoro that breakdown of a marriage should be one of the grounds for the granting of a decree of judicial separation. The amendment differs from the Commission’s recommendation in that the court will have to be satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application for a decree on the basis that the marriage has broken down. This new ground in section 2 of the Bill, together with the existing subsection (3) which covers the case where the spouses, though living under the one roof, are in fact living separate lives, will cover in more precise terms the type of cases which were intended to be covered by section 3 (1) (f) of the original Bill, that is, the “family circumstances” provision.

With regard to Deputy Colley's amendment, the phrase "that the marriage has not existed" has no meaning in the present context. In legal terms a marriage either exists or it does not. If it does not, it must mean that either it is void or has been voided. On the other hand, the phrase used in the amendments in the name of Deputy Shatter and myself "that a normal marital relationship has not existed" will present no difficulties for the courts. It is a phrase in common usage in case law in the family law area and once the court has satisfied itself that in all the circumstances a normal marital relationship has not existed for at least a year it will grant a decree. The use of the phrase "in all the circumstances" constitutes an important safeguard in that it will ensure that only genuine cases of breakdown will come before the court and it will exclude such cases where, for example, one spouse has to work away from the home for long periods.

Deputy Shatter made reference to the comments I made on the motion to recommit the Bill and he is quite right. I did say I feared the Bill might disappear irretrievably. I am pleased that has not happened and that we do have it. Certainly a lot of work has gone into the Bill, principally by Deputy Shatter and the Minister, but also by others of us here around this table on all sides of the House. Some of us have gone to the trouble of submitting amendments and in our own way trying to make a contribution to getting the best possible legislation from it. In the context of the motion to recommital, I recall that both myself and all the members of the Labour Party voted in favour of the recommittal so that the terms of the Bill could be improved. If we had not done so we would not be sitting here around this table.

The point made by the Minister on Deputy Colley's amendment is well taken and perhaps that is a difficulty. At the same time I follow the thrust of the points made by Deputy Colley and there is a great deal in what she says. Essentially, the difference between the irretrievable breakdown point, as I have it in my amendment, and the wording of the amendment now jointly moved by the Minister and Deputy Shatter, is that the expression "irretrievable breakdown" as the Minister pointed out on many occasions, is taken from English divorce law legislation. The way that worked when those cases came to court was that when one of the parties to the marriage came into court and said: "Sir, this marriage of which I am one of the spouses has irretrievably broken down" for all practical purposes that is the end of the matter. It might be that the other spouse would say "No, it has not", but in effect the courts have taken the view that if one spouse says the marriage has irretrievably broken down, the courts accept that. That is the end of that and mud slinging is avoided.

What we have in this joint amendment is something different. It would not be sufficient just for one person to go to the court and say: "In the circumstances of my marriage a normal marital relationship has not existed." With that formula it would be open to the other spouse to go to the court and say "No, not so. In fact, a normal marital relationship has existed." The court would then have to be satisfied and would have to go into the question of whether it had or had not. There is a basic difference on the proof situation on how a case would progress if it was being based on either of those alternatives.

I do not want to make a big issue of this. I realise the realities of politics, that if this is a joint amendment being proposed by the Minister and Deputy Shatter it will be passed by this committee and passed by the Dáil. So be it, it is not the end of the world. I am glad to see the legislation progressing even with those words. At the same time, I believe it is appropriate for me to put down that particular marker in anticipation of how these cases may evolve when they go to the courts to be argued. Having made that point, rather than delay the matter any further, I withdraw my amendment.

I am quite satisfied that the new subsection (1) (f) will allow a couple whose marriage has broken down to obtain a separation decree on the basis of satisfying a court that their marriage has broken down. I appreciate the worries expressed by Deputy Colley. I am satisfied that the section proposed by the Minister and myself will fully cover all possible eventualities relating to marriage breakdown when taken together with the other grounds laid down in the Bill upon which a separation decree can be granted. I appreciate that Members of the committee are anxious to tease out this subsection. It is right that we do so and I hope it will now commend itself to the committee. I do not believe that Deputy Colley's amendment would add anything to the detailed consideration a court would have to give to the state of a marriage at the time a separation decree is sought. Obviously, it would be for the court to look at the overall marital relationship between the husband and wife for the year prior to the court case taking place and possibly go back longer than that. I do not think that there is any major difference between what we are proposing and what Deputy Colley is proposing as to the practice of what the courts will do. I hope we can now agree on this amendment.

Amendment, by leave, withdrawn.
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