The manner in which this debate is conducted within the Oireachtas and outside it will give some indication as to what extent, if any, we have matured as a society in recent years. If we can conduct the debate on this difficult social issue in a calm, rational and reasoned manner, then I think it will show that Irish society has at last grown up. If, however, the debate degenerates into the sort of hysteria and emotional rhetoric which was a feature of the 1983 referendum campaign, irrespective of the outcome it will reflect very badly on Irish society and will damage the self-respect and confidence of our people as a whole.
The debate will also say a lot about the nature of the relationship between Church and State in our Republic. As far back as May 1975, the then Bishop of Kerry, Dr. Eamonn Casey, who is now in Galway speaking on behalf of the Roman Catholic Hierarchy said that the question of legislation was a matter for the legislature and that politicians must be guided by the people who elect them. Unfortunately, since then, especially in their submission to the Forum, the Roman Catholic bishops seem to have retreated from this.
The disclosure this morning that the Roman Catholic Hierarchy intend to mount a major campaign, printing and distributing one million copies of their pastoral letter and presumably engaging in a series of discussions from pulpits and so on, appears to confirm a major retreat from the position as expressed in 1975 by Bishop Casey. It indicates that they are not prepared to accept that legislation is a matter for the legislators. This has brought into focus once again the whole nature of the Church-State relationship in this country.
I would argue tonight, as I argued in the debate on the amendment to the Family Planning Bill, that it is for us in this House as democrats to defend our democratic role as legislators regardless of whether or not we agree with divorce. The decision must be made in this House in relation to the referendum and we must campaign for and against the issue on the basis of whether it is right or wrong for the citizens of this State, irrespective of their religious persuasion.
Apart from the compelling arguments that exist for the removal of the constitutional ban on divorce on humanitarian grounds, there is also a strong argument for the removal of Article 41.3.2. of the Constitution if we believe in the principle of separation of Church and State. Article 41.3.2. represents one of the worst aspects of the denominational nature of our Constitution. The article is exclusively Roman Catholic in its conception. On that basis, it is sectarian and ought not to be part of the basic law document of a democratic State. Our Constitution should not place those citizens whose moral views do not exclude divorce at a disadvantage before the law.
In this context it is important to emphasise that all Churches, other than the Roman Catholic Church, in their submissions to the Oireachtas Joint Committee on Marriage Breakdown and in their recent discussions with the Taoiseach, and many secular groups have indicated their support for the removal of the constitutional ban. These Churches have accepted the desirability of the State legislating to allow divorce. This does not mean that as members of Churches they are failing to uphold strongly the Christian ideal of marriage as a life-long and exclusive relationship. They have argued that this ban should not be included in the Constitution and laws of the State. A vote in favour of divorce is not inconsistent with a personal moral belief in the principle that marriage is indissoluble for oneself. It is a vote to allow others who do not share that view to exercise their moral judgements and rights in relation to marriage breakdown.
The Roman Catholic Bishops in campaigning against this amendment must accept the logic of that position. They are adopting a partisan position on a political issue, the right of the State to regulate marriage and make provision for marital breakdown. Having entered the political arena, they must accept that their statements must be judged as political views and not as religious pronouncements. While much of their case concerns the social effects of divorce, which is open to a variety of interpretations, as is clear from the small number of contributions made today, their fundamental position is that Roman Catholic beliefs should be enshrined in our Constitution and laws because their position has been revealed by God and that, anyway, the majority of citizens are Roman Catholic and therefore the Roman Catholic view should prevail. This was their position on the family planning amendment last year, on the constitutional amendment in 1983, and now on divorce. It is a fundamentally sectarian and anti-democratic position.
As I have argued before in relation to the family planning legislation, if there are two or three dozen bishops in Maynooth who have between them all of the wisdom, the justice and the rights and know exactly what is for the common good of this country and if we accept that all Roman Catholics must abide by that, whether they be ordinary lay people or legislators, then why bother with a democratically elected assembly? What is the point, if 45 bishops in Maynooth can decide for us what is right and what should be in our laws? It ignores the rights of other religious congregations, for a start, and of all citizens, including many Roman Catholics, who want separation of Church and State and who are not satisfied that what is defined as sinful by a particular Church automatically should be illegal.
I said earlier that the way in which this debate is conducted will indicate the maturity or otherwise of our society. It should be said as well that the debate will be looked at by a large number of people in Northern Ireland of various opinions and traditions. However, it would be wrong of us either to support or oppose this issue of divorce simply as a means of encouraging, or otherwise, the Unionists of Northern Ireland to look more favourably on unity with the South. I have always opposed the idea that divorce, or family planning, or any of these issues that cause such controversy here, should be used as political lollipops to try to encourage people in Northern Ireland to take a more kindly view of us. These issues must stand or fall on their merits for the citizens of this State, and it is on that basis that the matter should be approached.
The case for divorce does not depend on proof that marital breakdown has increased substantially, but such proof strengthens the case. It is a matter of a civil right for citizens to be allowed to choose. The number of people who may need to avail of divorce is largely irrelevant. The question of large numbers being in need of it strengthens the case, and I do not think anyone would dispute that marriage breakdown has increased in recent years. The Divorce Action Group have estimated that 70,000 adults in this State are involved directly in broken marriages. The report of the Joint Committee on Marriage Breakdown gave figures some time ago showing that 8,000 women with more than 14,000 dependent children were receiving deserted wife's payments. In the short time since that report was prepared those figures have increased to 9,300 wives with more than 15,000 dependent children. That shows that in the years since these allowances were introduced there has been a steady increase each year.
Many varied and complex factors associated with marital breakdown can be given. Attempts were made here today to argue that availability of divorce and the existence of divorce law would create marriage breakdown. I have a number of case histories proferred by the Divorce Action Group and I will read through a few of them to indicate the problems that exist for many couples.
Anne was married at 19 years of age 15 years ago and was deserted by her husband five years after they were married. She and the three children have not seen him since. Anne has been seeing a man for the past two years and would like to marry him. Does that case warrant divorce? I would argue that it does. John was 22 years when he got married five years ago. His wife moved out a year later and said she did not want to meet him again. He made a few unsuccessful attempts to get her to go back and has now heard that she is living with another man and has two children with him. Is this not another case for divorce availability?
Patricia went out with her husband for three years before marrying him two years ago. He started to throw things at her during the honeymoon and got more and more violent towards her as time progressed. She left him after a year and moved back with her parents. She is now 25 years and would like to start over again. Is that not a case for availability of divorce? Martin was married for six years and had three children when his wife met another man and moved in with him. She now has two children by the other man. She and Martin are on reasonably good terms. The three children are living with him and she sees them regualrly. Martin would like to get married again. Are they not grounds for divorce?
Bob and Carmel were both 23 years when they married. They drifted apart and separated six years ago. They are now both living with other people and both of them have begun families with their new partners. Mick and Linda recently got a Church annulment after waiting seven years. If they become involved in new relationships they could get married in a Catholic Church but that marriage would not be recognised by the State.
Joan was married in the early fifties. Her husband was a heavy drinker and his drinking gradually got out of hand. He sold their house 15 years ago. They have been separated since then. She does not consider herself to be married.
They are all real people who through no fault of their own find themselves in that position. They are not the hard cases spoken about here today and the cases that will be spoken about in the next two or three days. They are genuine cases of people who entered into marriage contracts. They did not work out, and now the law of the State provides that they must not get married again at any time before they die. Any of them who enter new relationships will not have those relationships recognised and any children that come from those relationships, to use our archaic terminology, will be illegitimate and they have no protection whatsoever under the law.
These cases are only a sample. It is clear that the factors involved in marriage breakdown did not mean that particular individuals became infatuated with other men or other women and went off on that basis. As I have shown, it is not a matter of people getting married today and looking for divorces tomorrow. These situations developed over time. People found themselves to be unsuited to live with each other. Apart from showing that there is need for a divorce law, the cases I have given indicate clearly that marriage breakdown occurs without the existence of divorce law or the opportunity for divorce. There is no evidence to show that divorce laws, whether liberal or strict, have any significant impact by themselves. The causes of marital breakdown have much deeper roots in social and economic changes. The introduction of divorce laws have followed rather than initiated social changes.
I should like to read some extracts from a book published by the Irish Council for Civil Liberties in 1979. The author is Mr. William Duncan, a law lecturer who specialises in family law. He deals in that document with the question of objections to divorce. Incidentally, it is the only document I have come across that deals in a fairly scientific way with the case for and against divorce and I recommend it to any Deputy or member of the public. In the book he deals with the question that divorce causes marriage breakdown or makes marriages unstable and he makes the following comment:
The fact is, however, that they are based on an assumption about the relationship between divorce and marital stability which time and again has been proved false. Professor Rheinstein, who has written probably the most authoritative work on the subject in recent years, involving an examination of divorce experience in many countries throughout the world, summarises the counter-argument as follows:
"Even endless repetition cannot make true the proposition that lives or homes are destroyed by divorce. What may destroy homes or lives is something quite different: the breakdown of a marriage, an event in the realm of fact which is different from and regularly precedes that event in the realm of law which is called divorce, and which does no more than, ascertaining the fact that marriage has broken down, restore the parties to the freedom of entering new relationships that will be recognised as legally effective marriages and thus as socially respectable."
He quotes G.R. Leslie, who is dealing mainly with the situation in the USA and who writes as follows:
There is no necessary relationship between divorce rates and either family or societal stability; high divorce rates may reflect family breakdown, or they may reflect societally prescribed ways of eliminating disruptive influences.
He quotes the Law Commission in England who commented in 1966 on the rising divorce figures:
These figures may merely reflect the fact that a growing segment of society is coming to regard divorce as more respectable than other outcomes of a broken home. They are therefore important figures for sociologists and people responsible for social policy, but they do not give cause for believing that morality is being corrupted in England, still less that it is the divorce law that is the corrupting agent.
He also quotes a series of other authorities in the area of divorce. The references are in the book entitled The Case for Divorce in the Irish Republic published by the ICCL in 1978.
Various devices exist in the State to cope with marital breakdown but only divorce is said to be objectionable in principle. The fundamental difference between divorce and separation is the right to remarry. The differences between divorce and nullity relates to the time at which the grounds for a decree must have existed. Remarriage is considered acceptable in the case of annulment that is, for those who can establish an initial defect at the time of marriage but it is not considered acceptable in the context of divorce, that is, for those whose marriages may have been successful initially but subsequently became defective. There is no social reason why that distinction should be made. There is a religious reason and everyone accepts the right of people who hold that religious conviction to abide by it but there is no social reason for making a distinction between when a defect occurs in a marriage, thereby denying on the basis the right to remarry. The State should not uphold that distinction.
I have said repeatedly, as have others, that divorce is not offered as a cure for marriage breakdown, nor can a sustainable argument be made that divorce legislation causes marriage breakdown, as I have indicated in reading the extracts from the book to which I referred. As Deputy McCreevy quite rightly said, you cannot prevent death by banning funerals. A good divorce law is simply that. It is an attempt to lay to rest a marriage that has broken down and where there is no possibility of reconciliation. A good divorce law can only regulate the aftermath of a broken marriage in such a way as to minimise the distress and the trauma to the parties involved. I stress the fact that fundamentally there is no difference between a family that has divorced and a family that has separated, whether it be a judicial separation or a separation by agreement. The fundamental objection in this debate would appear to be the right to remarry.
One of the main arguments put forward by opponents of any change in our legislation is that divorce damages children. There is considerable evidence to suggest that children are adversely affected by marital disruption and breakdown but this in no way proves the assertion that divorce damages children. That assertion is based on two assumptions: that divorce promotes marital breakdown and that a broken marriage that ends in divorce is more damaging than a marriage in which marital disharmony continues. Today people have quoted various sources backing the case for and against divorce; but as far as I can see the evidence is that it is tension and discord, rather than separation and divorce, that harms children most in the long term.
I read a book published recently in which the author interviewed a number of children in Britain about the effects of separation and divorce on them. I stress that the author claimed nothing more for the book other than the fact that this was the case for the children she interviewed: she was not attempting to say this was the general position. In her conclusion she arrived at the view that in the case of separation or divorce — there was little distinction in Britain in relation to this — while the children were unhappy and disorientated in the short term, in the long term it was more beneficial for them to be taken out of a situation where there was marital disharmony.
I presume all sides will produce all sorts of authorities to argue one side or the other but it should be admitted that there is a case that children are harmed by marital breakdown. There is no dispute about that as far as I am concerned but it is a question of whether in the longterm they are better off as a result of their parents separating. It is my view that they are. Nevertheless, children are vulnerable in such situations and legal procedures should protect them as much as possible. It must be stressed that this is as important in a non-divorce jurisdiction as it is in a divorce jurisdiction. Our present procedures for dealing with child-related legal problems such as custody disputes are very far from satisfactory. It is totally intolerable to continue with a situation where Church annulments can be granted on an increasing basis which leave children totally unprotected as a result.
The other major argument put forward by opponents of divorce is that divorce damages wives or women in general. This is put forward on the grounds that it is the wife who is generally economically dependent and she will therefore suffer if a marriage ends; also, that if the husband founds a second family he is less likely to be able to support the first family; that an innocent wife or husband may have divorce or desertion forced on her or him. These arguments do not stand up to scrutiny. The law and the Constitution, even as it stands, do not and could not force a spouse to remain or resume living with a husband or wife. The damage does not come from the fact of divorce but from the breakdown or separation itself. Any public representative will be aware from dealing with constituents' problems that economic difficulties arise whenever a marriage breaks down, whether there is desertion, agreed separation or judicial separation. No doubt that will be the case in situations of divorce as well. The absence of divorce does not prevent it happening. As I said previously in another place: how could a deserted wife with two children living on £66 per week be any worse off simply because she has the right to re-marry as a result of the removal of the constitutional ban? It does not make sense.
Cases have been made today about the Succession Act. While I am not by any means an expert in this area, I understand the Minister for Justice stated here today that the rights of children and wives would not be affected in that area as a result of divorce legislation and that courts, under the proposed divorce legislation, would have the right to deal with property matters at the time the divorce was taking place. This would be a far better situation than at present.
The absence of divorce makes it impossible for separated couples to establish a legally protected relationship with a second spouse. Taking the reverse view of the argument that divorce damages people economically, divorce in a situation which would regularise second relationships would be protecting dependent spouses by ensuring that they had legal entitlements to an income. Divorce in those circumstances could help to provide security for dependent partners. If a marriage has completely broken down and one partner has left five years previously, it is difficult to see the real advantage to the other spouse of opposing divorce. Certainly, it would not make sense on economic grounds. The arguments on the economic vulnerability of women, which is a fact under the present jurisdiction, do not relieve the State of its responsibility to protect the innocent or the dependent spouse, particularly against financial hardship. This protection is required now, not just when divorce is introduced. The present position can hardly be classed as satisfactory generally in relation to the status of women in our society.
Regarding the specific constitutional amendment being proposed. The Workers' Party have some reservations about the form of words used. There was an argument for simply deleting Article 41.3.2 in its entirety and possibly Article 41.3.1 as well. I say this because Article 41.1.1 and Article 41.1.2 of the Constitution already include very specific and strong guarantees of protection for the family which most people would want to see retained in the Constitution. Article 41.1.1 states:
The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
Article 41.1.2 states:
The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
Clearly if the State had fulfilled its obligations under that Article there might be far fewer cases of marital breakdown.
If a specific wording had to be included to replace the Article which I believe should have been deleted, then the wording produced by the Labour Party in their recent Private Members' Bill would have been preferable to the amendment before us. That amendment seemed to provide solid guarantees of protection for the family and marriage without placing the absolute restrictions on the Legislature which are involved in the Government's amendment.
The Constitution sets out the broad legal and social framework within which the laws of the State must be drawn up. I am not convinced that it is a good principle to include such restrictive detail in an Article of the Constitution as there is in the wording before us. I do not believe there is any other section of the Constitution that includes such specific restrictions on the details of any possible legislation. While I acknowledge the arguments in favour of the Government's wording, I have particular reservations about the inclusion of a very specific period of time for which a marriage must have failed before a divorce can be considered. It surely would have been better to consider this in the detailed legislation that will come before the House after the amendment has been passed.
In relation to the Government's intention regarding legislation, there are a number of points requiring clarification. I, and the Workers' Party, welcome the decision to establish the special family courts. Indeed this was something which we specifically sought in our own party submission to the Oireachtas Joint Committee on Marriage Breakdown and I look forward to the Government actually spelling out in detail how the courts will work. In any event, we must ensure that the procedures are informal and non-adversarial. In particular, we must ensure that they do not simply become a gold-mine for the legal profession. In this context I would welcome assurances from the Government that free legal aid will be available and that the necessary staff will be employed to ensure that legal aid will be available to people without delay. There are very long delays in obtaining civil legal aid at the moment and the law centres certainly could not cope with the demand which is likely to arise in the immediate aftermath of the introduction of divorce legislation. That demand will obviously arise because of the build-up of cases which have been accumulating in the absence of divorce over the years.
The other area where there is a genuine concern which needs to be clarified by the Government is the question of social welfare entitlements for persons in the aftermath of a divorce. There are all sorts of anomalies that might arise when divorce is introduced and a full-scale review of our social welfare code will be needed to deal with the new situation. I would suggest that the Commission on Social Welfare which I understand is concluding its deliberations at the moment would look at the effects which the proposed legislation would have on our social welfare code and how various social welfare recipients can be protected along with their dependants, whether they are divorced or judicially separated.
There are two areas to which I would ask the Minister particularly to address himself. In regard to a woman who at present is receiving a deserted wife's allowance and who applies for and gets a divorce, what social welfare entitlement would she have in that situation? In regard also to the case of a woman who is divorced and who has been receiving maintenance from her former husband and whose husband dies, what pension if any would she be entitled to?
These are questions which need to be dealt with. They are not issues which should be used to defeat the idea of divorce. They are simply questions which need to be dealt with to ensure that everyone, regardless of status, gets an adequate income and that their children, if they have custody of them, should have enough to live on. That obviously would apply to men the same as it would apply to women. One of the major anomalies in the deserted wife's code at the moment is that a deserted husband who is not in a position to work or is unemployed is not entitled to a deserted spouse's allowance. This is an anomaly that exists at present and should be eliminated and there should be an opportunity to do that during the course of this debate.
It has been argued that the introduction of divorce will change the concept of the Irish family. There is a certain amount of misunderstanding in relation to what exactly constitutes the Irish family. It is said that divorce will change it. The reality is that the Irish family has changed virtually out of recognition from what it was 50 years ago. It is no longer, in the vast majority of cases at any rate, the extended family that existed, certainly in the Dublin area where there were brothers and sisters and mothers and fathers and uncles and aunts and grandmothers and grandfathers all living within a stone's throw of one another and, in many cases, in the same house and where they supported one another. That, by and large, is no longer the case in Irish society. Is that the concept of the family which we are trying to preserve? There is also the emergence of the single parent family which is a growing phenomenon, whether we like it or not. It is a reality of Irish society. More and more young women are choosing to rear children on their own. Would that fit into the concept of the family which we are told we should preserve or try to protect? I do not believe it does. Judging by the comments of some speakers in this debate, the single parent family is not included in their definition of the family.
It must also be accepted that the basis of marriage in Ireland, as indeed in other countries, has changed. A century ago, or even more recently than that, marriages were based on economic necessity where there was a need for a husband and wife and the children to work in the home, either on the farm, in some cottage industry or in some other way because it was impossible to exist unless one was involved in a family of that kind. That is, largely, no longer the case. Marriages are made now more on the basis of personal relationships rather than on matchmaking or the transfer of dowries or any of these things. The basis of marriage has changed; the basis of a relationship has changed. When people are talking about divorce altering the concept of the family and substituting one kind of family for another, they are not facing up to the reality that Irish families have, in fact, changed, perhaps unknown to them.
The other element of that is the fact that women, despite our Constitution which places them firmly in the home and firmly in charge of domestic duties and no other duties, are no longer satisfied with that subservient role. As far as I am concerned that is a good thing. Women are entitled to the same equality and the same rights and the same life as any other person in society. That also is an element in the changing face of Irish families and Irish marriage.
There are a whole range of other things as well, for example, the longer life span of people and earlier marriage age all make for longer marriages which nowadays, if they are to last for life, have to last a lot longer. If one is talking about getting married in the early twenties and perhaps living together into the early seventies, one is talking about 50 years. One hundred years ago marriage for life probably meant about 20 years. So we are talking about a huge change in relation to how long couples have to put up with each other, and that too has a bearing on this idea of marriage and the family. This debate shows that this House is slowly, and perhaps painfully, coming to terms with these realities.
It was suggested when we were discussing the Family Planning Bill that there were more important things the House should be dealing with — there are major economic problems, major unemployment and so on. These are points I agree with and I would argue on behalf of very strongly, but I do not take the view that any of these issues should be in competition with each other. I do not accept that the happiness or well-being of men, women and children should be put on the long finger until such time as this Government, the next Government or some other Government get around to solving the unemployment problem. I would argue that the solution of the unemployment problem might help to solve the problems of marriage breakdown, but I strongly oppose any idea that this proposal to change the Constitution and to introduce divorce legislation is in any way less important than any of the other major economic and social issues which this State faces.
That, basically, is the case I wanted to make in support of the divorce referendum and the broad outline of legislation which the Government indicated they will introduce. I will be working for a massive yes vote. I will be speaking as often as I can on the issue and hope to convince people that they should vote yes on the basis of compassion for those who are trapped in marriages that have broken down, where there is no possibility of reconciliation, and also on the basis that we must establish in this State a body of law which is applicable to all citizens and with which all citizens, whether they hold any particular religious belief or no religious belief would feel comfortable, would feel they are part of our society and that they are not restricted in the exercise of their validly held moral view of how they should live their lives.
