This is for me one of the first fundamental areas of disagreement with the Government in regard to this Bill. This section deals with divorce and gives jurisdiction in divorce actions to the Circuit Court, that is, of course, divorce a mensa et thoro as we have it in this country. As far as I am concerned the question of divorce generally could be classified as coming under the heading of family law and would therefore include for the purposes of this discussion not only the matter of divorce but also matters of custody of children, maintenance of children, maintenance of spouses and various relevant issues in the general area of family law.
We argued very strongly on Second Stage — I restate it briefly now — that the adversary system of the courts is anathema to, the antithesis of, what is needed where a marriage is in difficulty — and there are enough of those. I can think of no less helpful arrangement for trying to bring about an improvement in a marital relationship than the traditional adversary system of the courts when it deals with what is one of the most intimate, profound and significant human relationships. The approach which is appropriate in dealing with, relatively speaking, inanimate matters of property or other areas of justice, that is the system with prosecution and defence putting each other as it were in the dock, with witnesses being cross-examined and interrogated for the purposes of eliciting support for particular viewpoints is a reasonable one in many respects in the majority of cases. It is not what should happen in dealing with questions relating to marriage.
In my view experience alone has already shown that the courts are totally unsuitable for resolving a significant number of disputes arising under family law, that is the courts as we know them. This adversary system has, by and large, served us well in regard to other matters but it is not suitable for family law matters. Implicit in that system is one side propounding its own best points in the dispute and attacking the weaknesses of the other side. Translating this into a dispute between a husband and wife makes clear the criticism of using the adversary system or the courts system in this country for resolving family disputes.
For example, one has the situation where a husband through his lawyer attacks his wife in the dispute, referring to weaknesses which the husband alleges the wife has been guilty of. If the husband instructs his lawyer to the effect that the wife has committed adultery, then attack by way of cross-examination is made on the wife at the hearing. Whether or not it be true it hardly conduces towards ever effecting any reconciliation or, if reconciliation be impossible, it hardly conduces to the husband and wife meeting the consequences of the break-up in a realistic and reasonable manner. Although the break-up may be inevitable, frequently it is not possible to say that the relationship has come to an end. There may be children and the question of custody, maintenance and so on is a continuing factor. Just because the marriage breaks down it does not mean an end to the dispute nor indeed to the relationship in many cases.
If one accepts as a general proposition that the reconciliation of the parties in a marital dispute is something to be aimed at if at all possible and responded to sensibly and courageously if it is not, one can readily see that the adversary system not alone does not help to bring this about but is a factor which may make it irreconcilable. A situation where reconciliation may have been possible has now become permeated with unforgettable, traumatic, deeply psychologically wounding allegations and counter-allegations. Even if that is not so, it conduces towards ensuring that the parties will fail to deal with the ensuing matters of maintenance of the spouse or custody and access to or maintenance of the children in a reasonable fashion.
It is therefore proposed that these disputes should be taken out of the traditional court structure and should be the property of family courts specially equipped to deal with the difficulties people have today in marital arrangements and to deal with these problems sensibly, with a full range of what we might call social care network available to guide them, not as a major confrontation about issues of inanimate property but as a most fundamentally important discussion about how to rebuild a relationship which is in trouble, if that be the will of the parties involved.
In so far as it seeks to extend this jurisdiction in relation to divorce a mensa et thoro, this section is a very bad step in the wrong direction and this party oppose the section outright. The general subject covers a very big area and will give rise to considerable difficulties. In my view the whole question of dealing with family law disputes and family law generally should be a matter for a different Bill and a different approach, but I will not go into it in detail now.
The reality is that no such Bill has been introduced and I trust the Minister will not give that rather limp and late response in relation to the abolition of criminal conversation, which was abolished in the country he mentioned nearly 100 years ago. Will a Family Law Bill deal with these matters? That is not a Family Law Bill; it is a misnomer. But at the same time we should be thankful for small mercies. I want to discourage the Minister from making it appear that family law was a subject already being discussed in a fundamental way in the Bill he introduced which deals broadly with criminal conversation and one or two related matters. That is relevant but very peripherally.
It seems pointless, as submitted here, to change the jurisdiction with regard to family law matters because of the court facilities. I will not labour the point, but can the Minister envisage a situation where the relationship of a couple, tragically for them and their offspring, has gone wrong? It is only that kind of relationship which comes into the courts because relationships which are terminated with the agreement of both parties do not come before the courts. We are talking about people who are already in conflict. Our job should be to act as a healing agency for such people. We should give counsel, wisdom and justice, not third rate court conditions and rapid dispensation of law, which in many cases is very far from justice.
I would not be satisfied that the matters under discussion in this section would be adequately or properly dealt with in the context of the present manner of operation of the Circuit Court. It would be unreasonable to expect hard working Circuit Court judges, limited as they are in terms of numbers and resources, to deal with these matters. It would be unjust — and I am primarily concerned about this — to the growing thousands of families who are in such difficulties to fob them off in this way. That is not to suggest I am happy about the way they are being dealt with at the moment, but the response in this Bill is not the appropriate one.
We will be talking in the context of such cases about dissolution, issues relating to children's futures, issues which for the average person will probably be the greatest step he or she can take in a lifetime, and a particular response is appropriate. If there is anything this country can do, surely it is to learn from the experiences of other countries, I do not suggest that many of those experiences are necessarily appropriate here. However, one thing is becoming clear and that is that there is an unprecedented degree of marital difficulties at present and our response does not meet the real problems involved.
Will these courts have the facilities necessary to deal with such cases? Could anyone envisage a proper assessment of such a hearing where the various issues relating to all members of the family will be dealt with, where there will be adequate support agencies involved, not just as witnesses attesting to the fact of the alleged moral culpability of one party or the other, but in giving their assessment in a constructive round-table way as to how best to regenerate that relationship? Our approach should be permeated by compassion, by understanding, by giving time, by caring deeply, by not being rushed by a list of other cases and by investing a great commitment of personal and human resources in what is one of the greatest challenges of western society — the breakdown of marriage. Does the Minister seriously suggest that this proposal would do anything other than damage the prospects of such regeneration of those relationships?
How could we honestly expect parties to belabour each other across a court room, hawking out each other's excesses, warts and flaws — and which of us does not have them — and expect, once the judge has deemed the case to be closed, that these parties will somehow magically resume a relationship and go off happy, their children rejoicing in the new relationship which has been created by this environment? It could not happen like that, but let us at least endeavour to see that this procedure is given a chance.
I suggest that this section be withdrawn from the Bill on the basis that there is an urgent need for a proper family court system. I would not call it a family court but some kind of family tribunal arrangement which would not be based on mutual hostility and adversity, on who gets the best lawyer to eke out the dirt about the other party, on who can avail of private detective agencies and electronic aids with a view to incriminating the other party. That is not what justice should be about, especially when it comes to family protection and family law. Would the Minister agree between now and Report Stage to reconsider this section? I honestly believe it is misguided, not because anybody is being malevolent about it but because we have not yet come to grips with the real problems of marital difficulties in a number of respects.
This morning we are talking about how to respond to that problem in a way which would bring the parties together and get justice for each party. I am not suggesting that if a husband or a wife — and more usually the wife, unfortunately — wishes to assert his or her rights in certain respects that he or she should not get them, but that that should be done with the least likely damage to whatever embers of a relationship remain and with a view to rebuilding that relationship if it be to the benefit of the children or the family as a whole. For the most part that would be the case.
I made some comments on Second Stage, which I intend to repeat when appropriate, regarding my concern as to how the courts function and some of the injustices which have occurred. I feel great trepidation about asking the existing structure, which is geared to dealing with issues of property, to deal with something which is of fundamental importance to the happiness of human beings and the welfare of the country. I believe that our response should be much more comprehensive, caring and just. My colleagues have spoken about the provision of legal aid and the undoubted discrimination which exists at present. The basic ground rule is that a person who has money has a better chance of getting the law to operate for him than a poor person. All these points apply here also, except that the implications are more grave. How can the Minister justify asking a woman to equip herself adequately to deal with the situation confronting her under this section? Many women are impoverished and do not even know what their husbands earn. I know this section is wrong, and the Minister also knows it; yet we carry on this hypocrisy. All around us we see families in difficulty and our response is to tell them to go to a solicitor and to the courts. That is not the answer and anyone in this House who says otherwise is a hypocrite.
I have said before that there is room in this area for all parties in this House to work together. The happiness of families and the relief of the stress endured by some families are matters on which no political party should seek to gain political advantage. We would be very pleased to discuss with the Minister and his representatives, as well as with representatives of other parties and interests in this House, ways of getting us out of this morass and of helping people. I do not pretend that there is a great lobby for this or that there would be a great voting response, but it would be the right thing to do. It would be a good thing if we were to co-operate in this way at certain times rather than put our finger in the air at all times to see which way the wind is blowing.
There is no more fundamental issue in the area of social justice or family law reform than the problem of marriage difficulty. I appeal to the Minister to reconsider the exclusion of this section. I urge him to embark on a new approach to family law which would primarily involve caring for families and would not treat people as if they were items of property or chattels. Our approach to human issues must be different to that applied to issues relating to land or compensation. I again appeal to the Minister to reconsider the wisdom of excluding the section.