As I said last night, it is vitally important that we have a balanced debate on this subject with no great display of emotion one way or the other. No one can claim a monopoly of wisdom or knowledge on this subject. On the other hand, it is our duty to point out as far as we can the various problems that might arise.
It is clear from the experience of other western countries that divorce was introduced in a restricted fashion but gradually the grounds for divorce were extended from adultery to include desertion, cruelty, insanity and so on. The idea of a no fault divorce — irretrievable breakdown — was introduced to replace divorce on a fault basis due to practical considerations. The experience of other countries shows that where no fault divorce was introduced it led eventually to divorce on demand. It is not realistic to imagine that we will remain impervious to trends which predominate in other western societies.
The impact of divorce on these societies is indicated by some very chilling statistics. For example, 33 per cent of all marriages in the UK are subject to divorce proceedings — that is, one out of three marriages.
In 1972, the number of divorces, which increased steadily from some 2,000 in the twenties, was 110,700. By 1981, the number of divorces had increased to 200,000. In 1981, some 100,000 English children were in care.
At the start of this decade, one in every three marriages in the US ended in divorce, now the figure is one in every two marriages. The US divorce rate doubled between 1967 and 1977. Marriages in the US last for an average of six years, and one in every three children lives in one-parent families. In the US, in 1980, some 18.2 million children lived in single parent homes. The long term consequences for any society in which this happens are clearly obvious. We should note that when divorce was first introduced in Great Britain, a period of five years had to pass before either spouse could bring a divorce case before the courts.
It is fair to say that all of us in this House are motivated by the need to protect family life and also by a growing awareness of marriage breakdown as a reality of life in Ireland today. There are increasing numbers of people who, because of incompatability, the pressures of life in our modern society, violence and other causes, are experiencing broken marriages, with tremendous pressure and pain on the individuals involved.
In their deliberations on divorce, the Joint Committee on Marriage Breakdown accepted that any amendment to the Constitution which might be proposed to allow the introduction of divorce legislation should ensure that the rights of the family as set down in Article 41 are not diminished. The committee expressed the opinion that any such amendment should be drafted in such a way as to ensure that the basis of Article 41 is not altered, that it should continue to place a duty on the society to protect the family and the institution of marriage and to recognise the family as the natural, primary, fundamental unit of society.
How will adequate provision be made for the protection of dependent spouses and the welfare of dependent children who might be affected by the grant of a decree of divorce? It is unrealistic to think that the average spouse will be in a position to maintain two households and that is precisely what will happen in many cases. The problems caused by the initial divorce and the subsequent legal interpretations and implications for wives and children make it clear that divorce, far from being a remedy, very often exacerbates the difficulties that have previously arisen. Evidence from other western countries overwhelmingly underlines the sad fact that women and children undergo considerable financial hardship as a result of divorce. As two dwellings must be maintained and, consequently a second family, inevitably in the vast majority of cases there must be a drop in the standards of living of the parties involved. If, as usually happens, the wife obtains custody of the children, very often she is not in a position to take up paid employment leaving her vulnerable on financial grounds, and that is in addition to the social and emotional vulnerability which can be even more painful as separated women find themselves isolated and their status undermined.
A recent ten year academic study conducted in the United States was critical of the impact of no fault divorces. At the time of its inception the law was aimed to reduce the acrimonious element in marriage breakdown by eliminating the need for one spouse to prove that there are grounds for divorce. What no one envisaged was that a by-product of this legislation would be the emergence of a new class of impoverished women as wives had lost their bargaining leverage. Some 85 per cent of divorced women are awarded no alimony at all. When judges divide the family income the husband often gets two-thirds and the wives one-third. This study concluded that divorced women and their children experienced a 73 per cent drop in their standards of living during the first year while their husbands enjoy a 42 per cent rise in theirs.
According to the US Census Bureau figures, of the eight million women in the United States who raise children without the father's domestic presence, one-third of them are officially classified as living below the poverty level; two-thirds of those entitled to child support actually get none at all and millions of fathers avoid payments; seven out of ten ignore court orders; three out of every five children born in the United States today will experience a divorce in the family before they are 18 years.
It is tragically clear that women and children are impoverished by marital breakdown. This is particularly acute where women devote their lives to homemaking and rearing children and find it impossible, because of lack of professional skill, business goodwill, inadequate educational qualifications or the needs of the children, to find paid employment. It is clear that the decisions of the courts in Ireland and elsewhere are inadequate; nor can they be properly enforced in such a situation.
The present system of dealing with matrimonial property in the event of a marriage breakdown is most unsatisfactory as was outlined by the report of the Joint Committee on Marriage Breakdown. It effectively discriminates against women since in most marriages the wife is obliged to give up work outside the home for at least some time, and in many cases permanently, to look after the family. This suggests that because she is not earning she is unable to make contributions which would entitle her to an interest in property acquired in her husband's name. This is particularly inequitable as the Constitution, in Article 41.2 recognises the special importance of women within the home.
At present, it is clear that a whole range of issues relating to the interpretation of the law relating to family property requires clarification. The situation at present is that we cannot be sure that a dependent spouse is not prejudiced in any determination of property rights by the fact that she gave up employment in the course of a marriage to attend the duties in the home.
If divorce is introduced here, it is probably inevitable that our marriage breakdown rate will follow the sharp increase of other countries. If this happens, is the State prepared to guarantee proper and adequate maintenance for the families involved? That is something we have to evaluate seriously. Under Article 41, the State is constitutionally obliged to provide for the maintenance of women and children, who will be the helpless victims of divorce. The cost to the State of such support has not been calculated but in terms of local authority housing, social welfare payments and health care, it must be reckoned to be considerable.
Is it possible to ensure that the law relating to maintenance will be enforced? The evidence suggests not because this has not happened in other countries. Can we guarantee that the wife and the children of the first family will be supported by the estranged husband?
The joint committee noted the instances of persons who default on payments under the Family Law (Maintenance of Spouses and Children) Act, 1976, and recognised the relative difficulty which can be experienced in enforcing maintenance awards, particularly against self-employed maintenance defaulters. It is clear that the person against whom maintenance is awarded can defeat the effect of the order by disposing of his assets, leaving the jurisdiction or, if self-employed, by simply refusing to obey the order of the court and requiring the dependent spouse to have endless recourse to the courts with little hope of success. The structure of families in Ireland differs from our continental counterparts in that families are larger and only 10 per cent of the married women work outside the home, so there would be considerable financial considerations involved in the implementation of a divorce law.
None of us has a monopoly of knowledge and wisdom on this subject. However, it is our duty to point out the various dangers as we see them which might result from the proposed legislation and to point those out clearly and emphatically without prejudice, without displays of emotion. Ultimately the people of the country are very wise and will decide whether or not this legislation is proper. It is appropriate that we should point out the implications judiciously and the people will then decide.