Dáil Éireann díospóireacht -
Tuesday, 2 Feb 1988

Vol. 377 No. 3

Private Members' Business. - Judicial Separation and Family Law Reform Bill, 1987: Second Stage.

Mr. Shatter

I move: "That the Bill be now read a Second Time."

Marital breakdown is an ever-increasing and growing problem within Irish society. Prior to the seventies the law relating to marital breakdown had remained virtually unchanged for over a century. In 1976 the Family Law (Maintenance of Spouses and Children) Act was enacted to extend powers to the courts to make maintenance orders to provide for the support of dependent spouses, who were usually wives, and children who were not being properly provided for. The same legislation also extended to our courts power for the first time to make barring orders to exclude a violent spouse from the family home. The Family Home Protection Act, 1976, for the first time provided protection for the wife in the family home by preventing the sale of the home without her consent.

Essentially, the legislation introduced during the seventies and some further amending legislation of the early eighties was by way of a fire brigade legislative response to confront particular problems resulting from marital breakdown which were highlighted by pressure groups and the news media. It was not until the formation of the Oireachtas Joint Committee on Marriage Breakdown in 1983 that Members of the Oireachtas for the first time since the foundation of the State conducted a detailed examination of our marital laws and in particular our laws relating to marital breakdown. The committee in their report published in April 1985 acknowledged the failure of the Oireachtas to tackle this area and emphasised the need for reform. They state:

The problems caused by marriage breakdown have not been adequately dealt with by the Oireachtas in the past. The present laws which purport to deal with marriage breakdown are not comprehensive nor are they reactive to the current changes in society and in personal attitudes to the family and to marriage.

In their report the Oireachtas Joint Committee proposed comprehensive and radical reform of our separation laws and the court system that administers them. Many of the recommendations made by the Oireachtas Joint Committee are implemented by the Judicial Separation and Family Law Reform Bill, which is now before the House. A couple whose marriage has totally collapsed and who wish to permanently legally separate may currently adopt one of two approaches. If they agree that their marriage has broken down they may enter into what is commonly known as a Deed of Separation, under the terms of which they agree the future arrangements to be implemented between them to regulate the family finances and family relationships. Where it is not agreed that the marriage has broken down or where it is not possible for a couple to agree on the basis upon which they should separate it is open either to a husband or a wife to bring procedures to seek what is known as a divorce a mensa et toro. This is, of course, not a divorce in the popular meaning of the term, but it is in fact a decree of judicial separation.

The present law relating to the obtaining of decrees of separation has remained unchanged for centuries. Prior to 1871 a decree of separation in Ireland could only be granted by the ecclesiastical courts of the Church of Ireland. By virtue of the Matrimonial Causes and Marriage Law (Ireland) (Amendment) Act, 1870, the High Court inherited this jurisdiction and has exercised it since that date. The Courts Act, 1981, conferred a concurrent jurisdiction on the Circuit Court as and from May 1982 to hear and determine separation proceedings.

The only grounds upon which a decree of separation can presently be granted is upon proof of adultery, cruelty or what is known as unnatural practices. At no time since the foundation of the State has legislation been introduced into this House to either expressly state the grounds upon which a decree of separation can be obtained or to expand, modify or reform the grounds upon which such a decree can be granted. As a result the current law provides no legal remedy for many spouses whose marriages have totally collapsed and who require legal intervention to resolve the consequences of such a collapse. High Court proceedings for a decree of separation can still, curiously, be heard by a judge and jury as well as by a judge sitting alone, although it is some ten years since there was last a jury trial in a separation proceedings. Such proceedings in the Circuit Court are determined by a judge alone. If the court grants a decree of separation it has ancillary powers to make an alimony order to require a husband, against whom a decree of separation has been made, to pay alimony for the support of his wife and may also under the provisions of section 18 (1) of the Guardianship of Infants Act, 1964, make a declaration that the spouse by reason of whose conduct the decree is made is unfit to have custody of any children of the marriage. A decree of separation, or divorce a mensa et toro, also automatically deprives the guilty spouse, be it the husband or the wife, of his or her legal right to a share in the estate of the other, either as a legal right or on intestacy under the Succession Act, 1965. There are no other statutory powers conferred on the courts to make ancillary orders following the making of decrees of separation.

The courts currently cannot in separation proceedings determine property disputes between spouses or disputes relating to the guardianship or custody of children. Neither can they make maintenance orders for the support of a dependent husband or dependent children or orders to protect the family home or to permit its sale, where sale is desirable, or barring orders to provide protection for a spouse at risk of violence or property transfer orders, to provide security for a spouse who requires such security. In recent years, on occasions, both the High Court and the Circuit Court have in practice in some instances granted exclusion orders prohibiting a spouse against whom a decree of separation has been granted from entering the family home but there is no statutory basis for the making of such orders in separation proceedings and the courts jurisdiction currently to make them is open to question.

So as to circumvent the limited jurisdiction conferred on the courts when determining separation proceedings the practice has grown up in recent years of estranged spouses through their lawyers simultaneously instituting a variety of other court actions at the same time as the bringing of separation proceedings so that all issues that have to be resolved between them that arise from a marital conflict can be dealt with in a single court hearing. As a result, following a marriage breaking down a husband and wife can find themselves embroiled in two or three different sets of court proceedings and as a consequence incur a great deal of unnecessary legal expense.

For over 20 years our separation laws have been the subject of considerable criticism. Many voluntary groups and organisations have over the years called for reform and in 1983 the Law Reform Commission published a report on the need for reform. The Oireachtas Joint Committee on Marriage Breakdown discovered there was almost universal agreement right across the religious, social and political spectrum that our separation laws should be reformed and that the current narrow grounds on which a decree of separation can be granted should be replaced by the "one overall ground" of proof of irretrievable marital breakdown. In so recommending the committee recognised that the current grounds which require proof of the committal of a matrimonial offence maximised conflict between estranged spouses, discouraged instead of encouraged voluntary reconciliation and, where reconciliation was not possible, effectively sabotaged the possibility of future co-operation between estranged couples where such co-operation was necessary. The report of the Oireachtas Joint Committee recognised that the essence of marriage is the making of a formal commitment between two people to create and maintain a lasting and stable relationship and that where such relationship collapsed the purpose of separation proceedings was to provide the means whereby the parties to a broken marriage could rearrange their lives for the future with a minimum of bitterness and recrimination.

In recommending that irretrievable breakdown of marriage should be the one overall ground upon which a decree of separation should be granted, the Oireachtas Joint Committee prescribed six basic facts, one of which must be proved by a spouse to obtain a separation decree. Section 2 of the Bill now before the House corresponds to this recommendation of the Oireachtas Joint Committee.

The committee also recommended that all barriers to reconciliation contained in current law should be removed, and this is reflected in the provisions contained in the Bill. They recommended further that, following the granting of a decree of separation, the courts should have comprehensive powers to make maintenance orders, guardianship, custody and access orders relating to children, lump sum payment orders, property transfer orders, orders relating to the family home and other family peoperty as well as orders to provide protection for a spouse at risk of violence at the hands of the other spouse. All these recommendations are implemented in the provisions of the Bill before the House tonight. I wish to outline some of the provisions contained in the Bill as published. We will, of course, deal with them in more detail on Committee Stage.

Part I of the Bill deals with the basis upon which a decree of separation can be granted and related matters. Section 1 provides that after the commencement of the Bill the sole ground upon which a decree of judicial separation shall be granted is that the marriage has broken down irretrievably.

Section 2 provides that, in order to establish that the marriage has irretrievably broken down the party to the marriage must prove one of six facts. These are (a) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent (b) that the respondent has committed adultery (c) the respondent has deserted the applicant for a continous period of at least one year immediately preceding the presentation of the application (d) the parties to the marriage have lived separate and apart from each other for a continuous period of at least one year immediately preceding presentation of the application and the respondent consents to a decree of judicial separation being granted (e) the parties to the marriage have lived separate and apart for a continuos period of three years immediately preceding the presentation of the application, or finally (f) 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 cohabit with the respondent. All these provisions correspond with the recommendations of the Oireachtas Joint Committee as contained in paragraph 7.3.8.2 of their report.

Section 2 (2) requires that on proof of such a fact a decree of separation must be made unless the court is satisfied on all the evidence presented that the marriage has not broken down irretrievably. Section 2 (3) includes constructive desertion within the definition of "desertion" as referred to in the six basic facts I outlined. Section 2 (4) makes provision to ensure that where it is alleged a party to a marriage consents to the granting of a decree of separation the consequences of so consenting are fully understood by him.

Section 3 contains a provision to ensure that if parties to a marriage attempt a reconciliation after marital difficulties have occurred which could give rise to one or other of them seeking a decree of separation, the attempt at that reconciliation does not prevent a spouse from seeking a decree if the reconciliation does not prove successful. Under the current law if a husband or wife attempts a reconciliation and if the reconciliation does not prove successful, the spouse who could have brought separation proceedings may find he or she is unable to do so due to their being held to have condoned the matrimonial offence previously committed by the other spouse. In effect, the current law acts as a barrier to conciliation in circumstances where reconciliation may prove possible. For example, at present if a wife learns her husband has committed adultery and upon his promising not to commit adultery again forgives him and the couple resume normal marital relations, if matters do not work-out the wife may find that because she attempted to resolve the marital difficulties she is excluded from seeking a decree of separation. The current law effectively militates against reconciliation. The provisions of section 3 and section 32 of the Bill are designed to remove obstacles to reconciliation inherent in the current law.

Section 4 contains provisions to ensure that court proceedings between couples are avoided where possible. It requires a solicitor consulted about a marital difficulty to advise the spouse as to the availability of marriage counselling where there is a possibility of the marital problems being resolved. Where there is no such possibility a spouse must be advised as to how to effect a separation without bringing court proceedings. In the latter context a solicitor is required to furnish information to a spouse as to the availability of mediation services and the possibility of resolving the consequences of marital breakdown by the conclusion of a separation deed or a written separation agreement. Section 4(2) contains provision to enable a court hearing a separation case to adjourn the proceedings upon the application of either spouse if there is a reasonable possibility of a reconciliation being effected.

Section 5 makes provision to ensure that proceedings seeking a decree of separation cannot be commenced by a party to a marriage until at least one year after the date of celebration of marriage unless difficulties have occurred of a serious and exceptional nature so as to render it unreasonable and unjust to delay the issuing of proceedings. Section 6 provides that, following the granting of a decree of separation, the parties to a marriage are no longer obliged to reside together.

Part II of the Bill contains provisions to enable the courts to make comprehensive ancillary orders following the granting of a decree of separation. It also contains provisions to enable the courts to make interim orders or emergency orders to provide protection for a spouse where it is necessary to do so prior to a court hearing taking place and the court fully and finally determining the separation application. Section 8 gives powers to the court in separation proceedings where necessary to make such interim orders in respect of maintenance, interim barring orders to provide protection for a spouse at risk of violence, interim custody orders or access orders relating to children and interim orders for protection of the family home and for the protection of household furniture and property.

Section 10 lists the various orders the court can make following the granting of a decree of separation. Under this section it is provided that the court may make maintenance orders for the benefit of a dependent spouse and children; the court can make lump sum payment orders, property transfer orders, orders extinguishing or varying inheritance rights, orders determining any disputes relating to the guardianship and custody of children that arise, orders determining property disputes under the Married Women's Status Act, 1957, orders under the Family Home Protection Act, 1976 and barring orders under the Family Law (Protection of Spouses and Children) Act, 1981. It also extends to the court power in separation proceedings to make orders under the Partition Acts, 1868 to 1876 relating to the sale of property.

Section 10 (1) (m) enables the court to make an order determining which spouse shall have the right to continue to reside in the family home and which spouse shall vacate the home, or in the alternative whether an order for the sale of the home be made subject to such conditions as the court determines. Section 11 states the criteria the court is to have regard to in making an order under section 10 (1) (m).

Section 10 confers a jurisdiction on the court to grant orders pursuant to the specific Acts named in the section without the necessity of additional and separate court proceedings having to be instituted which would result in both husband and wife incurring much additional unnecessary legal expense such as they have to incur at present. Section 10 (4) provides that the court's jurisdiction to make property transfer orders and orders extinguishing or limiting inheritance rights can be invoked only on one occasion after the granting of a decree of separation.

Section 11 describes what criteria the court is to have regard to in making an order relating to a family home under section 10 (1) (m). In exercising the latter jurisdiction the court is required to have regard to the welfare of the family as a whole and in particular must take into consideration the following matters: (a) where a decree of judicial separation is granted it is not possible for the parties to a marriage to continue to reside together (b) proper and secure accommodation should where practicable be provided for a dependent spouse and any dependent child of the family (c) the matters referred to in section 13 of the Bill which I shall come to shortly. These provisions are designed to ensure that the position of a dependent spouse and children is fully protected in the making of any order pursuant to this provision, and again reflect recommendations made by the Oireachtas Joint Committee on Marriage Breakdown.

Section 12 provides that an order made by the court extinguishing or reducing inheritance rights can be made only when an order or orders are also being made by the court to pay a lump sum or when a property transfer order is made as provided for in section 10, except in circumstances where a spouse has been guilty of gross matrimonial misconduct.

Section 13 states the detailed criteria the court is to have regard to in determining what orders it should make in respect of maintenance, lump sum payments, property and inheritance rights. The criteria referred to include the criteria currently taken into account in determining what maintenance orders should be made in proceedings brought under the Family Law (Maintenance of Spouses and Children) Act, 1976, and additional matters proposed by the report of the Oireachtas Joint Committee on Marriage Breakdown to require the court specifically to take into account the manner in which family property was acquired and the relevant contributions of both spouses during the course of the marriage.

It also incorporates the view expressed by the committee that a dependent spouse should not be prejudiced in the ownership of family property by the fact that he or she gave up employment in the course of the marriage to attend to family duties in the home. The court must take into account the contribution made by each of the spouses to the welfare of the family, including any contribution made by looking after the home or caring for the family. The court must also take into account the effect on the earning capacity of each spouse of the marital responsibilities assumed by each during the period when the parties co-habited together. In effect, these provisions will, for the first time in our law, afford a substantive recognition of the work done by the wife in the home and for the first time in legislation give statutory expression to the constitutional duty imposed on the State to recognise the worth of the work done by a wife in the home. Despite all the constitutional rhetoric on this issue we have not, up to now, conferred such recognition on such work or required the courts to take such work into account when determining a wife's interests in family property acquired during the course of a marriage.

Section 14 provides that in considering the liability of one spouse to maintain the other and the amount of maintenance that should be ordered, the court can take into account the conduct of the spouse seeking maintenance where it is of such a nature and degree that it would be repugnant to justice to require that maintenance be paid to such a spouse. At present, in maintenance proceedings brought under the Family Law (Maintenance of Spouses and Children) Act, 1976, desertion by one spouse of the other is an absolute bar to the obtaining of maintenance, while adultery is a discretionary bar. However, cruelty is not a bar to the obtaining of maintenance nor is the commission of unnatural practices or any other form of matrimonial misconduct. The report of the Oireachtas Joint Committee on Marriage Breakdown recommends that the law in this area be changed and this provision is designed to implement the proposals of that committee.

Section 15 provides for the backdating of maintenance orders to the date when judicial separation proceedings were instituted and effectively prevents a spouse who fails to maintain his family from benefiting by deliberately delaying the hearing of court proceedings so as to avoid incurring an obligation to make maintenance payments for the support of a dependent wife and children.

Section 16 provides for the discharge or variation of maintenance orders in the event of a change of circumstances of either spouse.

Section 17 applies to maintenance orders made subsequent to separation proceedings the same provisions as currently apply to maintenance orders made currently under the Family Law (Maintenance of Spouses and Children) Act, 1976. Support payments for children can under this provision continue until a child attains the age of 16 years or if such child is still participating in a full time course of education or instruction until the child attains the age of 21 year's, as is the case currently under the 1976 Act. If a child is suffering from mental or physical disability to such an extent that it is not reasonably possible for him to maintain himself fully, maintenance provided for the support of such a child can continue indefinitely, well beyond the child's 16th or 21st birthday.

Sections 18, 19 and 20 of the Bill extend provisions contained in existing maintenance law which apply to maintenance orders made under the Act of 1976 to maintenance orders that are to be made under this Bill and extends the remedy of attachment of earnings to such maintenance orders so that the employer of a maintenance defaulter can be required to make maintenance payments directly out of the defaulter's salary. In effect, this means that if a maintenance order is made under the terms of this Bill and if a husband, for example, who is required to make maintenance fails to do so, and he is in employment, it will be possible for a wife to have his earnings attached. The weekly or monthly maintenance payable to the wife can be deducted by the employer for transmission to her.

Part III of the Bill deals with court jurisdiction. As already stated, currently, separation proceedings can be commenced in either the High Court or the Circuit Court although the majority of such cases at present are brought in the Circuit Court. Very often the Circuit Court hears family law cases on the same day as it hears criminal prosecutions, pub licensing applications, running down actions and other civil actions. As a result distressed husbands and wives are very often left hanging around the courts while other legal proceedings are given precedence. The Bill expressly provides that the Circuit Court shall hear initially all judicial separation proceedings and that when it is dealing with such proceedings the Circuit Court is to be known as the Circuit Family Court. It also provides that judicial separation proceedings should be heard on separate days set aside for the hearing of such proceedings and should not be intermingled with other types of court actions. As an alternative, it is provided that the Circuit Court sitting as the Circuit Family Court shall hear judicial separation proceedings at a separate venue from the venue in which other court proceedings are usually heard. The Bill also provides that all existing powers vested in the Circuit Court to hear and determine family law cases shall be transferred to the Circuit Family Court and heard and dealt with by it. Matters relating to the Circuit Court's jurisdiction are dealt with in sections 21 and 22 of the Bill.

Section 23 provides for a degree of informality at the hearing of family law proceedings. The Oireachtas Joint Committee on Marriage Breakdown emphasised the need to reduce the adversarial element inherent in the resolution of family disputes and to provide a less formal type of adjudication process for their resolution. Where legal rights are in contest it is clear that it is essential to ensure that justice is properly administered. Accordingly, it is not possible to make such proceedings totally informal. To deal with this issue, however, the Bill provides that family law proceedings in the District, Circuit or High Courts shall be as informal as is practical and consistent with the administration of justice. These matters are dealt with under the provisions of sections 23 and 33 of the Bill.

The Bill also provides that neither judges hearing family law proceedings nor barristers nor solicitors appearing in them should wear wigs or gowns. This provision is similar to one enacted in the legislation of a number of other countries in recent years such as Australia and New Zealand. To ensure that the anonymity of couples whose marriages have broken down is preserved provision is also made for all proceedings brought under the Bill to be heard in camera.

Of relevance to the manner in which the court exercises its jurisdiction is a provision contained in section 28 in Part IV of the Bill. The Oireachtas Joint Committee emphasised the need to enable judges determining disputes in relation to children to obtain independent welfare reports and assessments to assist them in the decision-making process. This section amends the Guardianship of Infants Act, 1964, by adding provisions to it which confer power on all courts dealing with proceedings relating to children to seek independent medical, psychological, psychiatric or social work reports on the child, the subject of the proceedings. By virtue of this provision and the provisions contained in section 8 and 10 of the Bill and Circuit Family Court, following the granting of a decree of separation prior to the making of any access orders relating to the guardianship and custody of children, will, if the judge deems it necessary, be able to seek such independent reports.

Part IV of the Bill deals with a number of consequential amendments of existing family law legislation which are required to provide for a consistent legal approach to the area of matrimonial law on the Bill being enacted.

Before moving completely away from reference to the courts it is only right to state that while the Bill provides for a number of radical reforms and changes in the approach of the courts to the resolution of family conflicts, it does not in full implement a major recommendation of the Oireachtas Joint Committee on Marriage Breakdown. The reforms being introduced by the Bill all accord with individual recommendations made in the joint committee's report with regard to the reform of the courts. However, a major recommendation of the Oireachtas Joint Committee is that there should be established a unified family court structure to hear and determine all family law disputes between spouses that require judicial resolution. They recommend that the current overlapping and fragmentary court jurisdictions exercised by the District, Circuit and High Courts should be transferred to a single court staffed by judges with a particular expertise in family law matters and who would have the backup of necessary welfare services. Unfortunately, it is not possible in the context of a Private Member's Bill to provide for the establishment of such a new court system. Legislation providing for such a court can only be enacted by the Government because it would constitute a charge on the Exchequer. While the provisions contained in this Bill will substantially improve the current position I would urge the Minister and his officials to examine seriously the recommendations made by the Oireachtas joint committee to provide a unified system of family courts and I would hope that legislation to establish such courts would be brought forward by the Government in the not too distant future.

I have now completed my outline of the main provisions of the Bill. It is my hope that this measure will receive support on all sides of the House. I have been greatly encouraged by the reaction I have received to it from Deputies on all sides of the House, including the Government side, since its publication and I would like to put on record my appreciation of the constructive approach adopted to the Bill by the Taoiseach who prior to Christmas indicated in the House that the measure would not be opposed by the Government and that he and the Government were well disposed to the Bill passing through Second Stage and proceeding into Committee.

This Bill is designed effectively to take Irish family law out of the 19th century and into the 21st century. It seeks to minimise the hardship and distress that can occur when marriages break down and attempts to ameliorate rather than exacerbate marital conflict.

It seeks to place a duty on lawyers consulted about a marital problem to ensure that all avenues have been explored by a distressed spouse before court proceedings are commenced. It imposes for the first time in our law an obligation on solicitors to provide information about marriage guidance services that are available and, where marriage guidance is not a practicable possibility, it imposes an obligation on them to provide information about the availability of mediation services.

It is a measure which is designed to encourage spouses whose marriages have broken down to reach a civilised agreement about their future arrangements without the necessity of court proceedings where that is possible. It confers new comprehensive powers on the courts to make financial lump sum and property transfer orders to provide additional protection, in particular for dependent wives and children, by enabling the courts to give to them a far greater degree of security than they can obtain at present. By conferring a jurisdiction on the circuit family court to resolve all outstanding problems that arise upon a marriage breaking down in one court action, the Bill will reduce the cost of family law litigation and will simplify much of the documentation required to commence court proceedings. Reform of the court procedures, the separation of family law court proceedings from other types of court proceedings, the prohibition on the wearing of wigs and gowns and provision to enable judges to obtain independent welfare reports on children will make family law court proceedings a less distressing experience for those who look to the law to resolve their difficulties.

I look forward to a detailed and constructive debate on the various issues raised by the Bill. The intention of Fine Gael in bringing forward this Bill is to provide the best and most comprehensive measure that is possible in this area. In this context I look forward to hearing any comments and criticisms Deputies may have to make. As we move out of Second Stage and into Committee Stage I will welcome any constructive amendments Deputies may propose that can improve the Bill to ensure that upon its enactment it will comprehensively and effectively reform our laws.

This Bill, like the Adoption Bill that we brought before this House last year, is one of a number of social reforming measures Fine Gael intend to bring before the House during the lifetime of this Dáil. A party in Opposition have a duty not merely to criticise the Government when they deserve to be criticised but to bring forward constructive legislative measures that deal with major areas of reform that need to be tackled.

Thirty years have elapsed since a Private Members' Bill was last enacted. It is noteworthy that in the 30 year period of 1928-1958, 16 Private Member's Bills were enacted through the Oireachtas. Since 1958, not a single such Bill has become law. It is unfortunate that Governments of different political persuasions in recent years have automatically taken the view that a Private Member's Bill sponsored by an Opposition party should be opposed regardless of the content of such Bill or its merits.

For too long Governments in this country have looked with suspicion on Private Member's Bills brought forward by individual Deputies for no reason other than to protect what has come to be regarded as the ministerial prerogative to introduce legislation and Governments have automatically and mindlessly opposed such Bills even if their passage would facilitate the Government in implementing policies which they supported.

The present Government are to be commended for not adopting such a knee jerk reaction. It is to be hoped that in the context of this Dáil the Government in their response not only to this Bill but to future Private Member's Bills that are published will copperfasten a change of attitude and a more mature political approach to the legislative process. We fought in this country for centuries to be given the privilege of legislating for ourselves. For too long Deputies in this House have been criticised for not acting as legislators when in reality they have been prevented by successive Governments from doing so. For too long Opposition and backbench Deputies have accepted the role of the legislative eunuch imposed upon them by the Government of the day. My own party have on occasion been as much as a sinner in this as sinned against. It is to be hoped that this Bill will be the harbinger of what can be described as a new parliamentary glasnost.

Minister for Social Welfare (Dr. Woods)

As Deputies know, the Minister for Justice is engaged on very important business connected with the Anglo-Irish Conference so I am speaking on his behalf at this stage.

The Government support the principle of this Bill and are anxious to see it proceed through Second Stage to be dealt thereafter in special committee. The Bill deals with matters which as Deputy Shatter has said, have been the subject of reports of the Oireachtas Joint Committee on Marriage Breakdown and of the Law Reform Commission. The commission discussed and considered the relative merits of certain approaches and their final views are expressed in the large number of recommendations for changes in the law of separation, or divorce a mensa et thoro as it is called at present, contained in their report. In their deliberations the joint committee took account of the Law Reform Commission's report, but did not follow it in full.

In 1986 the previous Government stated their intention to implement changes in the law of separation taking into account those two reports. Deputy Shatter's initiative in having the Bill published is to be commended and welcomed. I welcome the sentiments Deputy Shatter expressed towards the end of his speech. I recognise the constructive part which an Opposition can play and the detailed work which has gone into the Bill. I also recognise that Deputy Shatter was big enough to say that the Government have done the right thing. I will not refer to the last period in Government but we have reached a stage where, especially through committees and the work of the Opposition, we can have proposals discussed objectively here on the floor of the House.

I indicated previously to the House that my own proposals for changes in the law on separation were at an advanced stage of preparation and I have looked at the Bill in the light of those proposals. There are a number of matters in the Bill which are of concern to me and which may require amendment. I am in the process of ascertaining the views of interested Departments and of my colleagues in Government about these and other amendments which I think should be made to the Bill. These other amendments I refer to are extensive and are designed to improve the Bill. However, in my speech I intend to concentrate on the main matters of concern to me and to indicate the kind of amendments I have in mind to deal with that concern.

The Bill is important because of the extended remedies it proposes, namely, extension of the grounds for a decree of judicial separation, and the new maintenance, lump sums, secured payments and property orders provisions. The present remedy, divorce a mensa et thoro, has limited application because the grounds on which a decree is available are confined to adultery, cruelty and unnatural practices. Alimony is available only to the wife. Where, however, there is failure to maintain, the provisions of the Family Law (Maintenance of Spouses and Children) Act, 1976, can be availed of by either spouse. However, most separating couples resort instead to comprehensive deeds of separation.

That practice would of course continue to be the most appropriate procedure even after the enactment of this Bill — since it is generally better for couples with problems to come to mutually satisfactory solutions rather than to involve the courts — but undoubtedly there are cases in which both spouses, because of their differences, cannot agree to the terms of separation and may ultimately need to resort to the courts. In these cases it is important that the courts should have wider powers to grant a decree and to make ancillary orders, of the kind dealt with by Deputy Shatter in this Bill. The limited value of divorce a mensa et thoro decrees at present is reflected in the small number of applications to the courts. In 1986, 189 applications were made, 183 of which were made in the Circuit Court and the remaining six in the High Court.

All the reports I have mentioned, as well as the Bill, recommend that the grounds for a decree of judicial separation should be extended. The approach in the Bill is that irretrievable breakdown should be the sole ground after proof of various matters such as adultery, unreasonable behaviour, desertion and separation. I have reservations concerning irretrievable breakdown being the sole ground on which a decree of judicial separation should be granted, despite the fact that a similar recommendation was made by the Joint Committee on Marriage Breakdown.

My first objection is a conceptual one. Judicial separation does not put an end to the marriage — the parties remain free to come together again and have the decree discharged. Irretrievable breakdown, if the phrase means anything, does not therefore appear to be an appropriate concept to use in the context of judicial separation. Another objection is that irretrievable breakdown of the marriage does not require to be proved before a decree of divorce a mensa et thoro can be granted under present law. Such a decree can be obtained on proof, simply, of, say, adultery or cruelty without anything further. If proof of irretrievable breakdown were to be insisted on as well, the result could be that decrees might not be available in circumstances where they could be obtained under present law. Of course, it could be argued against this point that it would probably be that once one of the other facts were proved, acceptance by the court that the marriage was, in fact, broken down irretrievably would, in practice, become a formality — as it has become in England, in relation to divorce, where there is a similar requirement to prove breakdown in addition to one or more other facts (such as adultery or separation). On this view, however, the addition of a requirement to prove breakdown, in addition, to, say, adultery serves no useful purpose and is, in fact, unnecessary.

One of the main reasons for the proposal in the Bill seems to be the claim that "breakdown" as the ground for a decree removes the need to investigate questions of fault. On any view, this claim does not hold water since the court would expressly be required, before granting a decree, to make a finding on one or more other facts, three of which adultery, desertion and unreasonable behaviour, clearly involve fault.

I am inclined to the view that it might be preferable to follow more closely the recommendations of the Law Reform Commission in this matter. Broadly, their recommendation would mean that one or more of the facts set out as (a) to (e) of section 2 of the Bill would be sufficient ground for granting a decree, namely, adultery, desertion, unreasonable behaviour, separation for one year where there is consent and separation for three years. The Programme for National Recovery had a similar proposal as, indeed, did the previous Government's Statement of Intentions. The ground at section 2 (f) in the Bill namely, that the family and marital circumstances are such that it is reasonable for the applicant to wish to live apart from the other spouse, is so wide as to be almost meaningless and I do not think that it should be retained.

The Bill proposes, in effect, in sections 14 and 27 that desertion will no longer prevent people from getting maintenance or statutory succession rights. In relation to maintenance, the Bill contains the general provision that the conduct of parties shall affect maintenance awards where that conduct is "repugnant". While I acknowledge that these provisions are in line with proposals made by the Oireachtas Joint Committee on Marriage Breakdown, it would seem to me that there should be strong convincing reasons before we make such a fundamental change in the law which would allow a spouse who repudiates the marriage by deserting to benefit from the resulting breakdown of the marriage. I am not aware that such convincing reasons have been advanced for the change recommended. My present view is that I would prefer to see a provision that is in line with existing family law provisions, providing that desertion should be an absolute bar to an application by a spouse for maintenance, or for any financial or property order under the Bill and, apart from that, that the conduct of each spouse would be a matter to be considered by the court in deciding whether to make such an order, where that conduct was such that in the opinion of the court it would be inequitable to disregard it. I might mention that the position under existing law is that if a spouse obtains a decree of divorce a mensa et thoro on account of his wife's adultery, no alimony is payable to the wife.

On the question of succession rights, the Bill provides in section 30 that, following a transitional period, a spouse who is in desertion for two years or more would no longer be precluded from succeeding to the estate of a deceased spouse. It would appear that the basis for the provision is the supposition that in all cases of desertion a decree of judicial separation will be applied for. I think there can be no basis for such a supposition. Apart from the effects on succession of a decree of judicial separation which I will deal with now, I can see no grounds for a change in the present position on desertion as a bar to statutory rights of succession.

The Bill in sections 10 (1) (g) and 12, following generally the recommendation of the joint committee, proposes that, on the granting of a decree for judicial separation, the court should have the power to vary or discharge rights of succession of a spouse but only if, at the same time, it also makes a lump sum, property transfer, or settlement order in favour of that spouse, save where that spouse has been guilty of gross matrimonial misconduct. My main worry with this is that where under the proposal a court declined to make a lump sum, property or settlement order for the benefit of a dependent spouse in favour of allowing that spouse to keep his or her succession rights to the other spouse's estate, the latter may subsequently dissipate his or her assets, leaving no estate against which such dependent spouse can claim. This danger would exist also where under the proposal a court varied succession rights. The objection might also be made that giving the court discretion to vary succession rights offends against the long standing policy which favours certainty in the law of succession.

The approach of the Law Reform Commission that on the granting of a decree of judicial separation each spouse would be precluded from taking any share in the other's estate might be preferable. It is, of course, a common condition in the standard form of separation agreement used by separated persons that they each give up succession rights to the estate of the other. If the course recommended by the Law Reform Commission were adopted, loss of succession rights would have to be one of the matters the court would have regard to when exercising its powers to make a financial provision order. In this way, a dependent spouse would be as fully protected as possible. The question of succession rights following the granting of a decree of judicial separation certainly raises difficulties and it is one on which I would like to have the views of my colleagues in Government before Committee Stage.

The Bill, while it provides for the court to seek reports on children, does not expressly provide that the court, before granting a decree must be satisfied that the arrangements made for each child are adequate and reasonable in the circumstances. I would regard the inclusion of such a provision in the Bill of great importance to ensure that arrangements that are as satisfactory as possible are made for any dependent children. It is also a matter for consideration whether the court should be enabled to make property orders for the benefit of any dependent children, not just the spouse as is proposed in the Bill.

Generally, on the financial and property order provisions in the Bill, might I say at the outset that, apart from the one I have just mentioned, there are various aspects of those provisions which I think could be improved. There is, for example, no provision to nullify or render void transactions designed to frustrate the making of orders by the court.

Under the Bill the Court will have power to make an order conferring on one spouse, either for life or for such shorter period as the court may decide, the right to occupy the family home to the exclusion of the other spouse. In the alternative, the court may order the sale of the family home, or any property of a spouse, but in this regard the powers of the court under the Bill appear to be limited to sale of property held by the spouses jointly or in common. Provided that the power being given to the court to transfer property is constitutionally sound — I will come to that question in a moment — it would appear that the court should be given wider powers as to sale of property and generally to ensure that adequate and proper provision, having regard to the circumstances, is made for any spouse and dependent child.

There is, of course, the important question as to whether the provisions giving the court discretion to transfer property as between the spouses or between a spouse and his or her dependent children could give rise to constitutional challenge. This is a matter on which I am seeking the advice of the Attorney General. However, I might say that I would regard the inclusion of such provisions as being a particularly important aspect of the Bill and it was my intention, provided they were not regarded as being constitutionally unacceptable, to propose similar type provisions to those included in the Bill.

It would, under the Bill, be open to persons who have separation agreements to apply for a judicial separation and any ancillary order as to maintenance, lump sums, property etc. It might be a matter for consideration also as to whether persons who have a divorce a mensa et thoro should be allowed, if they wish, apply to court under the new financial and property provisions in the legislation.

Section 4 of the Bill provides safeguards to ensure that the spouses are aware of alternatives, namely, counselling and mediation, to court proceedings in separation cases. There could be some strengthening of those provisions to provide that the court itself would be required to address itself to the possibility of reconciliation or, if reconciliation is not possible, to whether mediation procedures, designed to achieve the maximum degree of agreement between the parties on the terms of their separation, should be invoked.

The Bill provides for certain changes in procedures: family business in the Circuit Court would in future be conducted in a "family circuit court"; family business in all the courts would be conducted as informally as possible and neither judges nor barristers would wear wigs or gowns. I am disposed generally to changes along those lines but, unlike the Bill, I think that the High Court should continue to have jurisdiction in judicial separation proceedings because ancillary orders may be made which concern property, the value of which exceeds the present jurisdictional limits of the Circuit Court. It is the case, of course, that parties could as at present consent to having the matter dealt with in the Circuit Court.

There may be a difficulty however, concerning section 22 of the Bill under which the circuit family court would have to sit in a different place or at different times or on different days from those on which the ordinary sittings of the Circuit Court are held. The difficulty arises in relation to the sittings of the court outside Dublin. There would, I understand, be no difficulty in relation to Dublin. What the Bill seems to require is that either two judges should be sitting together in a town thus requiring a separate venue, or that, if there is only one judge, he or she should allocate a separate day or days for family law business exclusively. Having regard to existing commitments in the Circuit Court, it is quite likely that if this mandatory provision were enacted, it would give rise to extra Exchequer spending from the point of view of staffing. I have already indicated to the House on a previous occasion that the institution of family courts could be very costly in buildings and staff and, therefore, is out of the question in present financial circumstances. In view of this it may be necessary to amend the Bill to provide only that the Circuit Court should, as far as practicable, when hearing family law cases sit in a different place or at different times.

In conclusion, among the other matters in the Bill which are of concern to me are the following. There appears to be some doubt as to how conduct of a spouse would be taken into account when the court is making orders other than maintenance orders and this may need to be clarified. Another matter concerns the provision in the Bill abolishing the bars to a decree of judicial separation, subject to retention of condonation, conduct which condones the behaviour of the other spouse, in a modified form — sections 3 and 32. On the basis that a person should not be allowed benefit from his own wrongdoing there appears to be a good case for retaining connivance as a bar, that is, where a decree is sought on the grounds of adultery and the other party proves that the adultery was committed with the connivance of the applicant, the decree should be refused.

If this Bill is enacted it will add substantially to the very few examples of Private Members' Bills that have been enacted. When the Government's views on the matters I am putting to them have been made known it will be necessary to refer them to the parliamentary draftsman for the drafting of any amendments that might be required. This will take time and it will be necessary to allow an adequate period to elapse before Committee Stage to allow the drafting to be done. Having said that, I can assure the sponsor of whatever assistance and cooperation is necessary to have the Bill made law as soon as possible. As I said at the outset, I am happy to support the principle of the Bill and I commend Deputy Shatter on bringing it to the House.

Miss Harney

The Progressive Democrats support the Judicial Separation and Family Law Reform Bill moved this evening by Fine Gael. At the outset I would like to congratulate and compliment Deputy Shatter for initiating this reform in this very important area by way of this Private Members' Bill. I agree with what he said about the reluctance of various Governments down the years to bring on board legislation initiated by Members of this House. I hope that has changed and, if so, will be of benefit not just to this House but generally to the benefit of the country. I often find that Deputies, when they are in Opposition, although they do not have the resources available that one would have in Government, have the kind of forward thinking that is required to initiate reforms of this kind and other kinds that we need so much.

I would like to draw attention to the last paragraph of the Minister's speech. I hope I am not misrepresenting what he meant by that paragraph when I say that it seems that although Fianna Fáil and the Government are supporting this Bill, I can in some way detect a sense of "let us put it on the long finger for a while"——

Dr. Woods

Not at all.

Miss Harney

——because the parliamentary draftsman will need a lot of time——

Dr. Woods

It is a new procedure and would certainly require technical examination.

Miss Harney

If this Bill passes Second Stage next week we should not delay in establishing a special all-party committee of this House to deal with the matter and departmental advice should be available to that committee in order to allow them bring forward the draft proposals. Whatever about the drafting, it is important that we get together on that committee to tease out the differences we may have to various aspects of this Bill.

As a former member of the all-party Oireachtas Joint Committee on Marriage Breakdown, I am only too well aware of the tragic situation in which so many Irish people find themselves as a result of our archaic laws, and often indeed our lack of any law at all, in this vital area of social policy. Despite the disappointing outcome of the divorce referendum in 1986, the fact remains that marital breakdown is increasing at a frightening rate in this country.

I believe that the recent census figures grossly underestimate the extent of the problem. Those figures indicated that 37,245 people were affected in a legal sense by marital breakdown, that is persons who had had their marriages annulled, were deserted, who were involved in legal separations or who had got a divorce in other countries. I believe there are many thousands more Irish people who are in difficult and broken marriages who have never had recourse to the law simply because there are not adequate laws here to allow people avail of such facilities. Many victims of broken marriages prefer to live in distressing circumstances rather than face the consequences of openly acknowledging that their marriages have failed. Irish society is still driven by a prejudice that makes it easier to sweep difficult social issues under the carpet than face up to the problem and implement sensible legislation.

Legal remedies cannot stop or cure marriage breakdown but they can alleviate its inherent problems by allowing those involved to have recourse to compassionate and realistic laws. The provisions of this Bill will do that in respect of judicial separation. They seek to remove the present Victorian criteria of endeavouring to establish who committed the matrimonial fault before a court can grant a decree of judicial separation. When this Bill is passed a couple will be able to get a judicial separation if their marriage has broken down irretrievably. Laws that enforce the fault mentality in inter-personal relationships hinder rather than help families in these difficult circumstances and, I believe, have no place in a caring society.

I am not at all happy with the Minister's view that irretrievable breakdown should not constitute the grounds for deciding that somebody should get a decree of judicial separation. I somehow detect that the Minister wants to retain the system whereby one establishes the fault against somebody, and try to establish who committed the wrong and when. I do not think that is any way to proceed in this area.

I support fully the views of Deputy Shatter, as outlined in this Bill, and the views of the all-party Joint Committee on Marriage Breakdown. That was one area in which we were in agreement — that more than anything else irretrievable breakdown should constitute the basis for granting a decree of judicial separation. Although supporting this Bill in principle I believe it to be defective in a number of respects. I say that realising that any Bill on judicial separation cannot do everything that needs to be done in the whole family law area. It still leaves the whole jurisdiction of family law within the present courts structure. I do not believe a court, however informal, is the appropriate place to deal with family disputes. I acknowledge what Deputy Shatter said this evening and also what is said in the explanatory memorandum — that establishing family tribunals would place an extra cost on the Exchequer. In a Private Member's Bill one cannot introduce proposals involving any extra cost to the Exchequer.

On Committee Stage I believe we should, as a matter of urgency, begin the process of implementing a unified system of family tribunals here. I believe that the adversarial courts structure — the whole idea of a court — is the wrong place for people to go with family problems. These tribunals should be staffed by people capable of dealing with marriage breakdown in a sympathetic manner. The removal of wigs and gowns is useless unless we have properly trained personnel, social workers, psychologists, marriage counsellors and so on to assist couples, particularly in the welfare of the children.

There must be adequate accommodation made to house such tribunals. The present circumstances in which people often have to queue in corridors along with criminals and others in order to have family cases heard is a disgrace. Although I have never been involved in a family law case many people I have met who have had recourse to the courts in order to establish their rights have said that had they been aware of the facilities, indeed the whole ethos of the courts in these areas, they would not have gone near a court in the first instance, that they had found the experience degrading in the extreme. Many such people have told me that they felt like criminals.

The criteria for selecting people to adjudicate on these family disputes in such tribunals should be different from the usual criteria used in selecting judges. This was a recommendation also of the all-party Joint Committee on Marriage Breakdown. It is the case that many people who at present adjudicate on family disputes do not have the interest, training or, above all else, the kind of sensitivity — to put it at its best — needed to deal with family disputes. Training in family law, which became part of the curriculum for law students in the last 15 years or so, is vital for judges and others involved in this area.

Very often family law is considered the pits by the legal profession; many senior lawyers and members of the Judiciary never want to become involved. Here I want to exclude Deputy Shatter. I know he is one of our leading lawyers in this area but it is a fact that many lawyers never want to touch family law.

Helping the victims of marriage breakdown to reconcile their differences by way of marriage counselling is at present in this country left exclusively to various churches and to the few private agencies that have been established for this purpose. With the exception of the pilot mediation and conciliation scheme established by the Minister with responsibility for women's affairs in the last Government, former Deputy Nuala Fennell, there has not been established here any proper State mediation or marriage counselling service. That is a disgrace. If the words of the Constitution and all the noble sentiments contained in speeches made in this House and elsewhere — particularly in the course of referenda held here — mean anything they must mean that the State should involve itself in the whole area of marriage counselling, mediation and so on. We must make it very clear that the best way that couples in a marital dispute can resolve their differences is by way of mediation and not through the courts. The courts and lawyers are not qualified or suitable people to resolve such difficulties. They should be brought into family circumstances only when everything else has failed.

Although Deputy Shatter, under the provisions of this Bill, places an onus on the solicitor consulted to inform his or her client that they should avail of marriage counselling or of mediation services, that is not sufficient. There is, first, the lack of resources and it is my belief that when people consult a solicitor they have probably passed that stage anyway. We need to educate couples involved in marital difficulties to seek help at the very early stages. The time at which they consult lawyers is possibly too late. I know that many lawyers consulted on family law matters do ask people whether they have consulted a marriage counsellor. Usually it transpires that the marriage counsellor is a local priest or some such person. Indeed many Members of this House often end up acting as marriage counsellors particularly women Members. We end up filling a vacuum for which we are not trained because the State has not involved itself in this area.

The welfare of children in this country takes second place to that of their parents. The Minister referred to this matter in the course of his remarks. The provisions of this Bill should place an onus on the court to have a report on the child's or children's welfare before making any decree. That should be mandatory. If both parents agree there is no problem but, in cases where there is not agreement in relation to the children, it should be mandatory rather than leaving it to the discretion of the court. It should be mandatory to order a proper professional report regarding the welfare of the children.

Following a family law dispute in this country parents end up joint guardians of their children. Although one parent will have custody both will end up as joint guardians. We need to examine these provisions again. There are many parents who, because they have been cruel to or have been involved in assaults of one kind or another on their children do not deserve to remain as joint guardians of their children. In those circumstances we need to look seriously at the responsibility of parents and of the State.

I hope that the child care and protection Bill, promised by this Government, will soon be introduced in this House so that the welfare of our children can be taken care of, so that, above all else, their rights and interests are taken fully into account in family law disputes. Invariably they end up the real, innocent victims in such disputes.

We also need to raise the marriage age. I accept that perhaps not all of these things can be achieved under the provisions of this Bill but, in the context of family law it warrants examination. There was a consensus in the all-party Joint Committee on Marriage Breakdown in relation to this matter also that the marriage age should be raised to 18.

There are many people in this country involved in marital disputes of one kind or another who often escape honouring their responsibilities. For example, when a wife is deserted the onus is on her to establish where her husband is, whereas I contend that a woman in those circumstances is not in a position to do so. It is my belief that the State should assume that responsibility, the State should endeavour to establish the whereabouts of the husband.

In the course of his remarks the Minister said that in cases where somebody deserts their spouse, they should not be entitled to maintenance allowance or whatever. I strongly disagree with that. In many cases people have no option but to desert because of the behaviour of the other spouse. It would be very wrong if they were not entitled to maintenance simply because they had been forced, for one reason or another, such as mental cruelty or whatever, to desert the other spouse. I do not like that thinking which forces people to stay together in order to get financial benefit. It is wrong and I would be very worried if that were to be a prerequisite for maintenance in this country.

Mrs. Barnes

Hear, hear.

Miss Harney

All the laws in the country are useless if people do not have access to the law. The present civil legal aid scheme is, to put it mildly, a farce; it is in total chaos. It is particularly so when it comes to family law. First we have too few centres. Second in areas where there is only one centre to cover a large geographic area, if one party goes to that centre obviously the other party to the marriage has to go elsewhere. It needs to be looked at again. We need to ensure that people have access to the law and to information and advice and are not denied that simply because they have no money or because they live in a particular part of the country. I accept the financial difficulties that exist. But priority must be given to those in our society who are living in difficult family circumstances, many of whom feel that they cannot have recourse to the law because they cannot travel the requisite journey, do not know where to go or whatever.

Deputy Shatter's Bill is simplifying the procedures for applying for a decree of judicial separation. I would like to see them simplified even further so that ordinary individuals could, off their own bat, make these applications without having to go to lawyers. I know it is not a prerequisite under Deputy Shatter's Bill, or even under the existing legislation, to go to a lawyer, but the law is so complicated and application forms are so technical that one would need to be a lawyer to understand them. We need to simplify the procedures as much as possible so that people need not unnecessarily engage the services of lawyers before coming before a court or a tribunal to make application for a decree of judicial separation.

Under this Bill people can now, for the first time, take a number of different aspects of their marital disputes under the one application and will not have to apply to different courts under different laws for different things. That is a good thing. It is farcical that at present one has has to go through so many different procedures to sort out marital disputes in relation to the family home, maintenance, barring orders, custody etc. It is welcome that all of this can now be done at once. It makes it easier, not just in a financial sense but in a practical way from the point of view of the person going through this experience; it will obviously ease the burden and trauma on them. People in this situation are in a very vulnerable position and the worst time of all is often immediately before a court appearance. If we can minimise the number of times they have to go to court or to lawyers then that will be for the better.

There are a number of other areas that need to be looked at again. First, there is the whole question of property. We need to look extensively at this in relation to marital disputes and in relation to marriage generally — one does not need to be in dispute to have something sorted out in that area. The Family Home Protection Act needs to be examined and there are a number of problems here. In particular there is a problem where one party to a marriage gets an unsecured loan and subsequently a bank or a building society can repossess the house to have that loan paid off. We need to look at that whole area to make sure that we do not damage the cause of a family, particularly the dependent spouse and the children.

In this legislation we need to take on board an education process in relation to marriage in the first instance because there is too little preparation for it; second, in relation to the counselling and mediation services that are available, albeit private facilities provided by the churches and private organisations, the mediation service in operation in the Irish Life building is not well advertised. I know they have dealt with a couple of hundred cases to date but it is not well advertised and many people are not aware of its existence. I know advertising facilities of this kind can be costly, but they could be advertised through the NSSB, which I hope is still in operation, and organisations of that kind which tend to deal with people involved in marital disputes. This service needs to be more widely used than it is. The words in the Constitution regarding the protection of the family, if they are to mean anything, must be given weight in legislation and the legislation must be effective by way of proper information and education.

I look forward to the debate that will follow over the next two weeks in this House. I know the Bill now has the support of all the parties in this House and that is the way it should be. Perhaps if the last referendum in this country had had the full support of all the parties we would be able to do even more in this whole area of marital breakdown because, at the end of the day, no matter what laws or changes we make, by way of this Bill or any other, we will not be able to give those unfortunate people who are the victims of marital breakdown a second chance; we will not be able to dissolve their marriages and allow them remarry, and that is a great pity indeed. It is a sorry state that we are still in this position in 1988. Sometimes when you make comments like that you are told that you are abiding not by the wishes of the people. I do abide by the wishes of the people. I have no choice anyway. But I think the people made a mistake, and I think they made a mistake because they were misled by the false and horrible campaign conducted by many groups in this country. I met deserted wives who told me they voted no because they thought they would lose their deserted wife's benefit if they voted yes. That is the level to which the campaign unfortunately descended.

I hope we will not have campaigns of that kind again and that it will not be long before we are in a position to enact full and proper legislation in this area so that people can be given a second chance. Regrettably, even the all-party committee on marital breakdown, of which I was a member, did not make recommendations for divorce, whether it was because we were not mature enough or courageous enough or whatever to do that. Yet 20 years earlier our predecessors on a different committee recommended divorce; it was not the ideal divorce, it was divorce for Protestants or for minority religious groups, but it was some divorce. Twenty years later we were not even in a position to make a recommendation of that kind.

The Progressive Democrats fully support the Bill. I look forward to participating in the all-party committee that will make some of the changes that I believe will improve the measure and make it more effective.

Mr. Abbott

I too wish to welcome this Bill which has been presented by Deputy Shatter as a Private Member's Bill, and I welcome the Government's conditional support for it and the contributions of all the Deputies who have spoken this evening.

The Bill can be regarded as a consensus document. Deputy Shatter has put it before the House, obviously with an eye to meeting the broadest possible consensus of the various views that will be reflected by Deputies. While he may not have reached the type of consensus document which many Deputies would put forward, nevertheless he is to be commended for having taken that discipline on board in relation to the production of a document which can be at least debated and discussed in this House in a very nonpartisan and constructive way. I hope the comments I make will be consistent with that spirit. If I have any criticisms of the Bill it will be with a view to perfecting the consensus and making it a more solid and viable entity and structure.

The general intent of the Bill, as I understand it, is to make the process of judicial separation as we know it in this jurisdiction — otherwise referred to as divorce a mensa et thoro— more efficient and more identifiable as a remedy for people with marital problems who very often, in the present very unsatisfactory situation, seek various limited remedies and effectively try to use the courts as courts of judicial separation. It is my view that the courts have been pressed into an excessive jurisdiction in many instances in applications for barring orders, and for maintenance, under the married women's property Acts and other legislation which were used as the various components of what sometimes proved to be full blown judicial separation proceedings.

It was a wrong use of the courts to have them pressed into making decisions on barring orders which were effectively decisions amounting to divorce. The recent decisions of the courts in relation to barring orders, especially those of the Supreme Court, have indicated that the courts eventually recoiled from being pressed into this type of toil. I consider the decisions of the court in this area to have put a very desirable pressure on the Houses of the Oireachtas to legislate positively in this area and not to shirk the responsibility for legislation by waiting for the courts to act inventively, ingenuously, and, very often without any democratic backing. The position as it has evolved to date is satisfactory in the democratic context in so far as it does not arise from the establishment of an independent law making function by the court which has to be rectified by this House, but arises from the fact that the courts have not exercised any far ranging and possibly dangerous law making function which would have to be rectified.

Mr. Taylor

No credit to us that we have to be nudged into it by the courts.

Mr. Abbott

The problem to be addressed is a very wide ranging problem. I agree with Deputies who have said that it is perhaps understand by the various statistics. The measure of the problem of marital breakdown can be indicated not by the existing track record of applications to courts for decrees of judicial separation but rather by the applications to courts of various kinds of barring orders, maintenance orders and the like.

I preface my remarks by saying that perhaps the view being taken of the Bill as one not giving rise to any great financial demands on the Government, and thus not being a Bill which the Government should initiate as a Bill charging moneys on the revenue, is not, if one considers what might work out in practice, a legitimate view. If this Bill is passed, as it will and must be in something approximating its present form, then the vast number of barring order applications in many cases will be transformed into applications for judicial separation. That is a fact. That in itself will create a vast volume of demand for judicial services in the form of courts and staff being available to hear the cases. This in turn will put what I consider to be an intolerable strain on the existing system especially in the country where the circuit system works from county to county. I cannot see the present distribution of judges or the present arrangement of courts being able to handle the situation, even on the modified basis proposed by the Minister for Social Welfare this evening.

To the extent that the Bill produces economic pressures which, ultimately, and if we are to be realistic about it, will place a financial burden on the Exchequer, I wonder if we are being realistic debating the Bill without considering first where the resources will come from to match what I referred to as judicial services which will be required by the public, and which will be the right of the public to require, under the Act.

Mrs. Barnes

We have the Minister for Finance here this evening and he may come up with the solution.

Minister for Finance (Mr. MacSharry)

Anything for Deputy Barnes.

Mr. Abbott

One of the main thrusts of the Bill which appeals particularly to me as a member of the Oireachtas Joint Committee on Women's Rights is the fact that the Bill encourages reconciliation in a formal way. This principle is one towards which practically all Irish people would aspire. It is a source of much concern to ordinary people, to many Deputies and to me that the judicial system to date has, to a large measure, discouraged the tendency for parties to a marital dispute to seek reconciliation. I have already stated on a number of occasions at the committee on women's rights that in many cases legal advisers are constrained to advise parties to a marital dispute not to seek reconciliation because to do so at certain stages of the proceedings would, in their professional view, prevent them attaining the legal rights for which they retained their professional advisers. This is a situation the Bill seeks to redress and I give full credit for the effort in that regard.

I have some reservations about the position in which the legal advisers would find themselves in the event of their having to advise parties of the alternative of reconciliation. It will be very difficult for a solicitor or barrister to go into court, to take the stand as a witness and to tell the court what they told their clients in relation to reconciliation, how far they have to go and break what has long been recognised as their professional commitment to confidentiality, privilege and silence as to what they said to their client and what their client said to them.

What Deputy Shatter proposes is a very radical innovation. I would suggest, respectfully, at this that the House should consider that the old tried and trusted procedure of independent legal advice in some shape or form to supply the type of advice which a party to a marital dispute would be required to receive in that instance.

Debate adjourned.