Before the break I had been dealing with a number of questions that arose in relation to this section on the Second Stage and have carried on into the Committee Stage. I had pointed out that as far as I could see a number of these questions have not been answered satisfactorily by the Minister and I look forward to hearing his view in the course of the debate this afternoon.
As a final point in the list of points, I raised the question of the family based on marriage and the position which would exist under the terms of the amendment. I want to know what the position of the first family will be and how their rights will be determined if the amendment as proposed by the Minister is included in the Constitution. It is also clear to me that the amendment affects every single family in the country and that there would no longer be a permanent contract; every marriage could be set aside in future, albeit under the terms that the Minister has mentioned which we have discussed in some detail earlier. It seems quite clear that every marriage in the country is affected and that in making a decision on the question people should understand that that is what is involved. I want the people to be aware of the issues that are involved. They should be aware of the implications before they make their decision.
I was particularly interested in the Second Stage contribution by Deputy Kelly. He seemed to be very clear about a number of issues which are not being presented clearly outside this House and, after today there possibly will be more confusion as the for and against campaigns go into action. It is our duty to establish the factual position. Deputy Kelly said he accepted that divorce is a dreadful event for children. He also accepted that the introduction of a divorce jurisdiction would be progressive and that even though we may be introducing something which is quite restrictive, the measures will be relaxed progressively. These are the worries we were trying to tease out this morning. We were worried that the wording proposed by the Minister would leave itself open to that kind of interpretation in the future.
Deputy Kelly went on to say that once we had a divorce jurisdiction it changed radically the concept of marriage. Deputy Kelly is a professor of constitutional law and very honestly and openly says what he thinks will happen. If the Government say honestly and openly what the facts are, the people will be in a position to make their own decisions and, on such an important moral question, it is the people who must decide.
Deputy Kelly went on to say that as the law stands the word "married" cannot be defined except by reference to indisslolubility. It is nothing if it is not indissoluble. He said he accepted that it will undergo a kind of chemical transmutation and that is undeniable. There will be a change in the status of the family in society and there is no point in Deputies suggesting that there will not be. We have to weigh this change against finding a compassionate and humane way to deal with the problems which might arise but it does not help if the Government are not forthright and honest about these matters.
Deputy Kelly then said that marriage would become an arrangement, although in the vast majority of cases it would be a permanent arrangement. As I said, that is a very honest and objective appraisal of the fundamental nature of the change we are considering. In this regard Deputy Kelly's view is particularly relevant since, as I said, he is a professor of constitutional law and is not confused between the statutory provisions and the constitututional position. As he knows, the constitutional position will override any subsequent statutory proposals and any proposal brought forward must have regard to what is contained in the Constitution.
He said he did not see this matter in terms of a civil right. He went on to say that he did not think anyone looking at marriage as a contract, even in the most simple and elementary form, could say that there was a civil right to dissolve a contract. He added that there is the right to break it and to pay damages and there is the right if both parties agree to modify it or to withdraw from it. However, he said, it was over-selling the case for the Government to describe divorce as a civil right. He said it would probably cause as many breakdowns as it will remedy and he made it very clear that he does not see this matter having anything to do with Northern Ireland.
It is very important that we make these points very clear. It is not simply a case of giving a yes or no to divorce in Ireland. It is not simply a question of removing the present constitutional ban on divorce. What we are talking about is amending the Constitution to provide every citizen with a constitutional right to divorce. People must understand this when they are making their decision. The Government's basic approach is to put into the Constitution a firm and strong provision for a constitutional right to divorce. To my knowledge, no other country has a constitutional right to divorce, although most countries have provision within the law for divorce. I looked at some constitutions, including the American Constitution which provides a range of rights, but it does not provide a constitutional right to divorce. This is one of the problems which arises under the Government's proposition. They are providing a constitutional right to divorce and we are removing the ban.
Up to now we were unique in protecting the family with very strong constitutional provisions. I mentioned these provisions on Second Stage: 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 or statutory regulation. The family is superior to any measures that might be taken and has very strong rights.
Our Constitution banned divorce but we are now removing the ban and putting divorce in its place. I would like the Minister to say a little more about why he did not propose a simple removal of the ban and attempt to provide for remarriage within the law. At a very early stage of the Oireachtas joint committee I presented a paper to them indicating that I thought it would be very difficult, even if you removed the ban, to introduce legislation which could provide for divorce because of the strength of support for the family in the other Articles of the Constitution. I am fully aware of that argument. The Minister has substantial legal and other resources available to him, and I would like to hear more about his thinking on the impossibility or possibility of doing that.
The Minister could have updated nullity and other things as Deputy Kelly suggested. Could he have introduced legal arrangements of any sort that would meet the requirements of families who have no legal status where a second union has been formed? My advice was that this would be extremely difficult if not impossible. The Minister seems to feel this is possible. If that is so, then other consequences will flow from that.
The question will go to the people. The Electoral (Amendment) Bill is to be taken in the House shortly and will just propose one question as follows:
The Tenth Amendment of the Constitution Bill, 1986, proposes to delete subsection 2º of Article 41.3 of the Constitution, which states that no law shall be enacted providing for the grant of a dissolution of marriage.
That is the first part — and to substitute then the words we are discussing here in this Bill here today. The next subsection of that section provides:
2. If you APPROVE of the proposal, mark X opposite the word Yes on the ballot paper.
3. If YOU DO NOT APPROVE of the proposal, mark X opposite the word NO on the ballot paper.
Therefore, it is a simple yes or no to two things combined which are (1) removing the ban (2) the introduction of a positive provision for divorce in the Constitution. People will just be offered the two things for one yes or no to the two combined.
Members of the House will remember that Deputy Michael O'Leary proposed the removal of the ban and then the control of divorce legislation through the Constitution. That was another approach which reflected a view and an attitude of mind amongst people who would want divorce legislation and would recognise that it should be kept in a very restricted way. He suggested that mechanism as a means of achieving that. Now the Minister is removing the ban and putting divorce in its place. The question arises then as to whether he really needs to rewrite the guarantees for the family, especially for the first family, which are contained in other Articles.
Will there be a conflict there in relation to the first family? Will all those powers in Article 41.1.1º remain, the inalienable and imprescriptible rights, the State guaranteeing to protect the family in its Constitution and authority? Then it goes on to state that the family is the family based on marriage. What will happen where there is contest between the two families and they wish to appeal to the Constitution? Which family will the Constitution recognise? Will it have to recognise both families equally? It will be clear and certain that the second family will have the full force and protection of the Constitution because they are clearly the family based on a marriage, and the marriage is the marriage mentioned in the amendment.
Therefore, the position of the second family will be clear, but what is the position of the first family? How will that be judged by lawyers in the future when they start to tease out the elements in this amendment, if it is passed by the people? To ensure that the first family will continue to have clear constitutional support, will it not be necessary for the Minister to put that specifically into the Constitution, to rewrite the other Articles that surround it? I would like to hear from the Minister on that because it will affect very much the position of the first family if this amendment is passed.
It is very relevant because, as mentioned on Second Stage, families have appealed to the Constitution for protection against the State when the State was being unhelpful to families or tried to press families into a situation they did not want to go into in education and other things. What will be the definition of a family if the Minister's amendment is accepted by the people? How will that be implemented?
Let me give an example. A lady has written to the Taoiseach, the President and others because of her present position. She has an agreed separation and her husband is contributing £5,000 per annum for maintenance. She is trying to support two teenage children and to maintain what she calls the family home. She is having difficulty in doing this because income tax is being charged on the amount which she has. She says:
I regret that I am unable to pay tax on my maintenance of £5,000 per annum. To pay this tax I would be obliged by economic necessity to seek and engage in labour to the neglect of my duties in the home. My support in the home to my children is my primary and moral obligation, and I hope that this matter can be brought to a satisfactory conclusion.
That matter was raised in a parliamentary question recently and it is with the Taoiseach who is fully aware of it. I give it only as an example of how these various provisions in the Constitution for protecting the family are used by the family to protect their position, and the administration of the day must take cognisance of the fact. That lady stressed in particular Article 41.2.2º which provides that:
The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
That is stated expressly in the Constitution and on that basis this lady feels she has a clearcut case. In practical terms she is in a very difficult position at the moment if the Revenue Commissioners are taking money and she is trying to maintain the family home and carry on.
All the definitions apply to that situation now. In the future if the Minister's amendment is approved by the people, what will be the position? What will be the family? What will be the family home? If her husband left her that sort of money and then married again, what would be her position, her rights? Could she claim as the family still in what used to be the family home? Solicitors and lawyers have very definite definitions as to what the family home is. I am not dreaming up these fears, they are problems which the Minister asked us to address and the harsh realities which must be faced. I only mentioned that case as an example of what the family home is and what it will be if the amendment is accepted by the people. I accept that the Minister wants to provide for the first family in any circumstances but the question is not about the Minister's best intentions, it is about what the lawyers will determine if the amendment is passed.
A number of areas raise serious questions. I mentioned social welfare generally and the reply was that the State will provide under social assistance schemes. If that is the case, the women and children of the first family will lose substantially. Let there be no doubt about that. If the Minister thinks that that is not the case I should like him to explain clearly why it is not. Will the Minister provide duplicate pensions or will people have to rely on social welfare payments? Children would also lose social welfare benefits because they would be dependants of the divorced wife if we assume that they are living with her and that she is trying to keep the home going. The right to benefit on the father's PRSI will be transferred, under the constitutional amendment, to the wife and children of the second family. The wife and children of the first family will lose the right to these benefits and instead will get social assistance. The most up to date rates of social welfare are due in July. If a wife of 45 years of age with a husband slightly older gets a divorce and the husband marries again and dies after five years, the widow's contributory pension will go to the second wife. The first wife may have been in receipt of a deserted wife's benefit but this will not be applicable now and she will have to go on to deserted wife's allowance. The rates in respect of her children will vary, depending on the size of the family, but there is a distinct difference between the social assistance scheme and the benefit scheme. As a result of the loss of PRSI benefit the wife would lose £6.95 per week. If she had six children she would lose £14. There is a personal loss for the wife and also for the children.
The Minister said that the divorce will be finalised in the Family Court. With all the good intentions which he has in relation to it and in which we support him the position changes when divorce is available. The Minister also said that a lump sum could be paid which would compensate for the loss of future benefits. However, a wife in these circumstances, having been transferred to means tested social assistance, will not be able to earn any money without losing at least some of her assistance. Even the allowances under social assistance would be reduced. Obviously, if she invested the lump sum the annual income would also be taken into consideration. The terms and conditions in that regard are very strict and are covered in the Social Welfare Act of 1981. Even if you earn a very small amount it is deducted from your allowance.
InThe Irish Times of 20 May 1986 the Minister for Health said that allowances would not be affected. He told a Labour Party public meeting in Dún Laoghaire that certain unnecessary fears had been raised in relation to the entitlements of women receiving deserted wife's benefits and allowances. He said that once a wife's entitlement had been established, the social welfare system continued to support her as long as she was deserted even if she was subsequently divorced abroad. However, if the husband resumed financial support of the family the entitlement would cease. That kind of information is misleading in these circumstances because once a divorce takes place a new situation arises. Are both wives entitled to PRSI and widows' benefits? I do not think that is the case. Is the second wife entitled to both? In my view the position is not as outlined by the Minister and if I am correct that should be made very clear because people are confused about it. The same applies to the different allowances. We have not had experience in that area and the figures for Britain and other countries show that the vast majority of women who are left at home with children to look after end up on the poverty line or close to it. They are thrown back on to the means tested social assistance schemes. If they try to supplement their income their benefit is reduced. The Minister must take into consideration the views expressed by Members on Second Stage.
People have raised questions about the financial implications but the Minister has not answered them. Deputies are right to raise those questions now so that people will be aware of the position before they vote on the amendment. Will the Minister explain what will happen to Army, Garda and public service pensions? Presumably, the first wife will lose the widow's and old age pensions and the direct entitlements from them. The Minister may say this will come in under reasonable and proper arrangement or adequate and proper provision having regard to the circumstances when the divorce is being decided. All circumstances should be included but in Practice it does not seem to work out that way elsewhere. We must try to protect the position of the first family in that regard.
Orphans will lose out under this. The rate for orphans is £4.90 per week less. In all those areas the amounts will be less and they will be means tested as distinct from the direct benefits under PRSI which a woman would be entitled to and still has even under separation. The dependent wife's benefit depends on the husband's PRSI. The non-dependent wife may have her own PRSI and, consequently, may have rights. That may be the reason why the Minister has left her out of the provision before us. Part II states:
...provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and...
It may be that in the Minister's view a spouse who is not dependant would continue to have rights. In other words, 100,000 working women would continue to have rights under PRSI and so on and be able to obtain benefit on that basis. If we accept the figures that have been given, 650,000 wives, less 100,000 working wives, it means that there are at least 550,000 dependent wives who will be dependant on the financial protection that will remain with the first family. Under the present arrangements those benefits continue. If the husband is on a benefit scheme the wife continues to receive those benefits but it appears that will cease on the day the divorce takes place. It appears that a dependent wife will lose the deserted wife's benefit and the widow's contributory benefit. The rates in regard to those benefits are very different.
What will be the position in regard to the old age contributory pension for a woman? Presumably a wife will lose the right to the old age contributory pension. The Minister may tell us that the noncontributory pension will apply but in those circumstances a wife will be forced to apply for a means tested old age pension. The rates for such pensions are very different. The loss per week, according to the rates that will apply from July next, will be £7.70 or 14 per cent. The loss will be greater if the wife has any savings or any other income because that pension is means tested. The Minister said our fears have been plucked out of the air but they are very real. People are concerned about these issues. It appears that the rights under the widow's contributory pension scheme and the old age contributory pension scheme are transferred to the second or subsequent wife meaning that the first wife and family will lose their rights and will fall back on the means tested benefits. The State will then have to recognise the claim under the Constitution of the second wife and family to the PRSI benefits which will have accumulated.
The question of the non-dependent wife also arises. Will the Minister define for us a "non-dependent wife"? Will he give an indication of the income level in regard to that person? I presume the term refers to working wives which would mean that 100,000 working wives will be omitted intentionally by the Minister from the provision in the amendment. On Second Stage I raised a question about this but the Minister did not respond. How much must such a person earn to be "non-dependent"? What if such a person becomes dependant after the divorce? What will happen to her if she loses her job or has to work at home? Is there any protection for her in the Government's legislation? It does not appear that there is any protection for her since all protections apply to a dependent spouse only. Is it the intention to introduce a new social assistance divorce allowance should such a person be obliged to mind the family?
Will a working wife have a divorced wife's benefit based on her own PRSI? Will she get credits while she works in the home after her divorce, or will she have to fall back on the means tested benefits? It appears that the position of such a person is not protected in the Minister's amendment. Will the Minister tell the House why that person is specifically excluded? It appears that all of this depends on means testing. The calculation of means is contained in section 210 of the Social Welfare (Consolidation) Act. It spells out very clearly how means are calculated for social welfare conditions. The weekly means of a person for the purpose of ascertaining entitlement are set out in subsection (2). The various elements are given, but basically it is a very tight provision. Subsection 2 (a) states:
In calculating the weekly means of a person, account shall be taken of the following:
(a) all incoming cash, including the net cash value of any non-cash earnings derived from personal exertions and the actual or estimated amount of any income as head of household, whether as contributions to the expenses of the household or otherwise...
Excluded are sums received as children's allowances for handicapped children and so on. It makes quite clear that in regard to the value of any property belonging to such person which is invested or which, though capable of investment or profitable use is not so invested or profitably used, the yearly value of the first £400 of the property is being taken to be one-twentieth part of the capital value and the yearly value of so much of the capital value of the property as exceeds the sum of £400 is being taken to be one-tenth part of the capital value and the weekly value of the property is being calculated as one-fifty-secondth part of the value so calculated.
Sums exceeding £400 will be calculated and taken into consideration. When the Minister says that a lump sum will be paid at the divorce stage which will take into account the loss of these rights, it would want to be a very substantial sum in the first instance. It would also want to be arranged in such a way that it can be delivered without being devoured by the means test, the Revenue Commissioners and other people subsequently.
That brings me back to the basic question of the position of the first family in relation to appeals against any abuse in the future in that area. The supplementary welfare allowances, of course, will probably apply and these are given on page 147, No. 207. There it is set out quite clearly that:
The weekly needs of a person shall be subject to any payment pursuant to section 209 to be taken to be, in the case of a person who has no means, the amount calculated in accordance with section 208; in the case of a person who has means, the amount calculated in accordance with section 208 which would be appropriate in his case if he had no means, reduced by 5p per week for every 5p or part of 5p in his weekly means.
That is sufficient to indicate that the means test aspect is extremely tight. Will the Minister radically change all that? He could change the whole situation. I presume the reason for not changing all of it is that the cost would be pretty astronomical, as the Minister could guess. If there is to be an overall change, why has the Minister not made some specific provisions in his amendment for the first family, to make sure they are kept out of the poverty trap about which we have spoken so often on other occasions in this House? Unless the State accepts the constitutional obligation to provide adequate maintenance for the first family, if the Government put divorce into the Constitution, why not put adequate safeguards for the dependants?