The House will appreciate that this is a technical area which is slightly different from what we are accustomed to and we will be looking for the forebearance, patience and co-operation of all Deputies. I am calling amendment No. 1 in the name of the Minister. No. 2 is an alternative and amendment No. 3 is consequential. Amendments Nos. 4, 5, 6, 7 and 8 are alternatives to amendment No. 3 and amendments Nos. 9, 10, 12, 13, 14, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 41, 43, 46, 50, 51, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 65, 66, 68, 69, 70, 71, 72 and 73 are related to amendments Nos. 4 to 8.
Judicial Separation and Family Law Reform Bill, 1987: Report Stage.
On a point of order, would you repeat that?
I was about to advise you that unfortunately I have to repeat it.
Is there a copy available?
The purpose of the Leas-Cheann Comhairle's announcement is to advise us of the groupings.
For the purpose of debate, they will be taken together.
Perhaps I could help. The Minister's first amendment is a key point but there is a series of amendments concerned with changing "party to a marriage" or "parties to a marriage" to "spouse" or "spouses". Some of them will have to be accepted even if the Minister's amendment is accepted and some of them will be irrelevant if the Minister's amendment is accepted. To facilitate the House may I suggest, to use legal parlance, on a completely without prejudice basis, that the Minister agree to the terminological changes which are designed to keep the Bill in order, so that we will refer to couples who are married in an identical way throughout the Bill. May I ask if the Minister would agree to accept the amendments where we replace "parties to a marriage" with "spouses". That would ease everybody's position.
Agreed.
That would deal with three-quarters of the amendments.
Other Members might not be as familiar with this as Deputy Shatter and the Minister are. Perhaps we should formally advise the other Members what precisely has been agreed and let them make suitable notations. Otherwise there could be chaos arising out of innocence or ignorance on the part of other Deputies.
Perhaps I could briefly explain. In the original draft there are various references to "parties to a marriage" or "a party to a marriage". On Committee Stage, some amendments tabled by Members and others tabled by the Minister referred to "party to a marriage" or "parties to a marriage" instead of to "spouse" or "spouses". In reality, it makes no difference to the substance of the Bill whether we refer to "parties to a marriage" or "spouses" but in the context of the Bill having a uniformity of approach and of legislatively producing a tidy measure, I tabled this series of amendments. Many of the amendments listed — from amendments Nos. 4, 5, 6, 7, 9, 10 and so on — are changing that terminology. Perhaps Members could agree to my suggestion, or, if there is any confusion we could take them individually, but I do not think that will be necessary.
Maybe we could take each amendment as we come to it.
We could note each amendment as we go through them.
I move amendment No. 1:
In page 4, to delete lines 21 to 25, and substitute the following:
2. —(1) An application by a spouse for a decree of judicial separation from the other spouse may be made to the court having jurisdiction to hear and determine proceedings under Part III of this Act on one or more of the following grounds:
(a) that the respondent has committed adultery;
(b) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;
(c) subject to subsection (2) of this section, that there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application;
(d) subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application and the respondent consents to a decree being granted;
(e) subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least three years immediately preceding the date of the application.
(2) In considering for the purposes of subsection (1) of this section, whether—
(a) in the case of paragraph (c) of that subsection, the period for which the respondent has deserted the applicant, or
(b) in the case of paragraph (d) or (e) of that subsection, the period for which the spouses have lived apart,
has been continuous, no account shall be taken of any one period (not exceeding 6 months) or of any two or more periods (not exceeding 6 months in all) during which the spouses resumed living with each other, but no such period or periods during which the spouses lived with each other shall count as part of the period of desertion or the period for which the spouses have lived apart, as the case may be:
Provided that this subsection shall only apply where the spouses are not living with each other at the time the application is made.
(3) (a) In this section spouses shall be treated as living apart from each other unless they are living with each other in the same household, and references to spouses living with each other shall be construed as references to their living with each other in the same household.
(b) In this section "desertion" includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse.
3. —(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and section 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.
(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—
(i) is satisfied that such provision has been made, or
(ii) intends by order upon the granting of the decree to make such provision,
for the welfare of those children as is proper in the circumstances.
(b) In this subsection—
"dependent children of the family" has the same meaning as it has for the purposes of Part II of this Act;
"welfare" comprises the religious and moral, intellectual, physical and social welfare of the children concerned.
(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964, as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.
I wish to advise the House that the mover of the amendment is the only person entitled to make a second contribution.
Amendments Nos. 1 and 3 and being taken together.
For the purpose of discussion all the amendments I listed will be taken together but the Minister has formally moved amendment No. 1.
My amendment No. 1 would substitute new sections for sections 2 and 3 of the Bill. Under these amendments a court would grant a decree of judicial separation on proof of one or more of the facts of adultery, unreasonable behaviour, desertion, separation for one year where there is consent or separation for three years where there is no consent. In addition, my amendments would make it clear that separation would include the case where spouses living under the one roof are, in effect, living separate lives. My amendments would also make it incumbent on the court before granting a decree, whether or not the spouses so wish, to consider the position of the children of the marriage so as to ensure that provision would be made for them as was proper in the circumstances.
The first thing I want to say about my amendment No. 1 is that it follows the Fianna Fáil proposal contained in the Programme for National Recovery and also the proposals of the previous Governments on judicial separation as set out in the statement of intentions of 1986 and is in line with the position in other common law jurisdictions. My proposals are also closer in certain respects to the proposals of the Oireachtas Joint Committee on Marriage Breakdown and those of the Law Reform Commission than are the provisions of the Bill.
My main objection to the provisions of sections 2 and 3 of the Bill relate to the following. First, the Bill purports to provide that the one overall ground for the granting of a decree of judicial separation shall be irretrievable breakdown. Second, a decree of judicial separation may be granted under the Bill where, and I quote from the Bill, "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". Third, the Bill places no obligation on the court on its own account to consider whether proper provision is or can be made for any children of the marriage.
As to the first objection concerning irretrievable breakdown, I have to say at the outset that it is a wholly inappropriate concept in the case of judicial separation and it has been recognised as such, not only in Northern Ireland and across the water, but also by the Deputy's own party in the previous Government. It is inappropriate because, unlike a divorce decree which is final in that it dissolves the marriage, a separation decree does not affect the status of marriage — it merely absolves one spouse from the legal duty of cohabitating with the other — the parties are still married and may indeed reconcile whereon the decree will be discharged. In the context of separation proceedings, therefore, it is a misnomer to think in terms of something that is irretrievable when clearly the effect of the decree of separation that is granted by the court is not necessarily final.
The argument advanced by Deputy Shatter in favour of his proposal is that the courts when determining an application for a decree of judicial separation under his Bill would do so on the basis that the marriage has broken down irretrievably and not on the basis of labelling one or other spouse as being guilty of cruelty, adultry or desertion. This, of course, goes to the core of his argument that the Bill is a no-fault Bill and it has been the theme of his campaign in the media. This argument does not stand up to examination. The reality is that the court may not grant a decree unless the applicant satisfies the court of one or more of a number of facts, all of which, with the exception of the ground of separation, are fault based. To pretend, therefore, as Deputy Shatter has done, that irretrievable breakdown is the sole ground for granting a decree and that, in consequence, the Bill is a no-fault Bill is misleading and false and my amendments are designed to eliminate that pretence from the Bill. In this connection, let me quote a recent discussion paper from the Scottish Law Commission on their divorce law — which is similar to that in England and Northern Ireland from which Deputy Shatter's proposals are drawn. The commission stated that one criticism of the present law is that it is misleading. It — the law — pretends that there is one ground for divorce — irretrievable breakdown whereas in reality there are five grounds — three based on matrimonial offences and two based on periods of separation.
Deputy Shatter has maintained that the court when granting a decree under his Bill would merely state that the decree is granted due to irretrievable breakdown in the marriage, not mentioning the fact or facts on which it is granted. He has no basis for saying that. The courts, when exercising similar provisions in our neighbouring divorce jurisdictions, state in decree nisi orders not only that the marriage has broken down irretrievably but that it has broken down on the fact of adultery or whatever fact is in issue. Decrees of divorce a mensa et thoro granted by our courts at present also state the basis for granting a decree. Misbehaviour would, of course, become an issue in any event in the context of the financial provisions that may be made by the court under the Bill.
Another problem with this part of the Bill is the unnecessary additional need to prove irretrievable breakdown except, that is, where the spouses consent to an application on the fact of one year's separation. That exception was inserted on Committee Stage following Deputy Taylor's amendment. The irony is that having copied English divorce legislation for the purposes of a Bill on judicial separation Deputy Shatter uses the very concept which is expressly excluded from separation proceedings in England and, indeed, in Northern Ireland. Moreover, their experience is that the court would not, in most cases, investigate the matter and in the rare case in which there is a doubt as to whether the marriage has broken down irretrievably, the only practical solution is for the court to adjourn the proceedings to enable attempts to be made to effect a reconciliation.
The Oireachtas joint committee recommended that once one of the grounds of adultery, desertion etc. is proved the courts should grant the decree. In that sense the committee's recommendations are closer to my amendments. Under my amendments the applicant would also only have to prove the facts which correspond to those in the Bill, apart, that is, from section 3 (1) (f) without any more ado. Nowhere in the Oireachtas joint committee's report is there a recommendation that there must in addition to one of the facts of adultery etc. be a requirement, as the Bill has, that the court be satisfied that the marriage has broken down irretrievably. Deputy Taylor's amendment, removing that requirement where there is consent to the application based on separation for a period of one year, went some way to acknowledge the logic of my argument against irretrievable breakdown but, unfortunately, it does not go far enough.
With regard to the second objection concerning the grounds for a decree in section 3 (1) (f), no one who listened carefully to the arguments so far advanced in favour of the subsection could be convinced that it represents good policy or clear law. The ground therein is that "the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart from the respondent". It was recommended by the Oireachtas joint committee but was, quite properly in my view, rejected by the previous Government in their statement of intentions as being unduly vague. Deputy Shatter has stated that this provision is the kernel of the no-fault provisions in the Bill. My objection does not relate to whether it is a no-fault provision. In fact I do not agree that it is a no-fault provision because the court in considering an application under this head would have to inquire into the difficulties of the marriage which inevitably would raise questions of fault. My objection is that it would give the court a carte blanche to grant decrees of separation on almost any basis. In effect the court is being asked to discharge a spouse from the duties and responsibilities of a marriage, not on the basis of adultery, unreasonable behaviour, desertion or separation but on something else and that “something else” is not defined in Deputy Shatter's Bill.
I am satisfied that the grounds of adultery, unreasonable behaviour, which includes the existing grounds of cruelty and unnatural practices, desertion and separation, which under my amendment would include spouses who are leading separate lives under the one roof, would, as they do in our neighbouring jurisdictions, provide a proper basis for a decree of separation. It would be wrong I think, if we were to ask the court to entitle spouses to live separate from each other on any other basis. To do so would, surely, be to denigrate the status of marriage and the duties and responsibilities of spouses one to another which exist within marriage. Section 3 (1) (f) drives a coach and four through the other grounds in section 3. Indeed it makes all the other grounds redundant.
If there is a problem in this area then in my view it is related to the case where spouses, even though living under the one roof, are in fact living separate lives. In other words, there are two households under the one roof. My amendment has been drafted to cover that case. Under the amendment such spouses can be regarded as separated for the purposes of the grounds of separation. That so far as I can gather is what is, in essence, intended to be covered in section 3 (1) (f) of the Bill. My approach is a far preferable approach than that of the Bill.
Finally with regard to objection No. 3 concerning the inadequacy of provisions in relation to children, this aspect has been given very careful consideration by me. At the very least it would seem to be necessary to ensure that before granting a decree of separation the court would have placed on it an onus to make sure that whatever arrangements are made for children are proper in all the circumstances. The provision in section 14 (1) (h) of the Bill in relation to children does not go far enough. It merely provides that the court can in separation proceedings make an order under section 11 of the Guardianship of Infants Act, 1964, determining any dispute between the spouses relating to any dependent child of the family. In other words the court would not have to address the question of children unless an application was made to it under the Guardianship of Infants Act. Under my amendment the court, before it grants a decree of separation, must look at the children's welfare whether the parents wish it or not. At present the court does not have that power in guardianship proceedings, nor is it provided for in the Bill and the absence of such a provision in the Bill is to my mind a grave omission.
I hope that what I have said will help Deputies to make up their own minds about what is or is not in the Bill and what my amendments aim to do. We need to be clear in our minds as to the effect the legislation will have when enacted. Unfortunately the widely advertised statements of people involved in promoting the Bill have been misleading and irresponsible in some respects. I have dealt with the more important of those. The amendment I am proposing in substitution for sections 2 and 3 of the Bill is aimed at improving the Bill and I ask this House to support it.
We on this side of the House are opposing the amendments tabled by the Minister, which are similar to amendments tabled by him on Committee Stage. I find it curious to hear the Minister refer to divorce legislation or reports produced about divorce legislation in other countries. I would emphasise that the provisions in this Bill have nothing to do with the issue of divorce. They are concerned with, as the Minister during the course of other comments stated, conferring on the courts a jurisdiction to grant decrees of separation and with reforming the law in this area in so far as it has remained untouched and unreformed for hundreds of years.
Amendments Nos. 1 and 2 tabled by the Minister deal with the substantive grounds laid down in the Bill for the granting of separation decrees in the event of the Bill becoming law. I want to emphasise that the provisions contained in the Bill in this regard reflect the unanimous recommendations made by the report of the Joint Committee on Marriage Breakdown published in 1985. They are not intended to reflect English or Scottish divorce laws or indeed divorce laws in any other jurisdiction outside this country. They are designed to implement a report produced by an Oireachtas joint committee which, for the first time since the foundation of the State, made extensive and comprehensive recommendations about reforming our marriage laws.
The Minister, in the context of amendment No. 1, objects primarily to two aspects of the current Bill. First, he objects to the provision whereby the one overall ground for the granting of a separation decree is proof of irretrievable breakdown of marriage. The Minister wishes to delete that provision from the Bill. He also wishes, in listing five grounds for the granting of a separation decree, to remove (f) of section 3 (1), a provision which would enable couples whose marriages have broken down to obtain separation decrees without having to engage in unnecessary name calling or abuse of each other within our courts system.
The Minister lays down five grounds for the granting of a separation decree. Those grounds reflect five of the facts listed in section 3 of the Bill as it stands which can result in the courts reaching a conclusion that a marriage has irretrievably broken down. Desertion, unreasonable behaviour or other matrimonial misbehaviour, as it would be regarded, such as adultery is not provided for in the Bill as it currently stands as a means for the courts to label one or other spouse to be the guilty or innocent party in a matrimonial conflict. The facts stated in the Bill under section 3 which enable the ground of irretrievable breakdown under section 2 to be established are used as symptoms which the courts can take as indicating that marital breakdown has occurred. In other words, desertion or adultery would be regarded as an external manifestation of the fact that the marriage has run into considerable difficulties.
If the courts rely on such an application to grant a separation decree, at the end of the day the decree would be granted on the one ground of the courts making a finding that the marriage has irretrievably broken down. That would take out of the courts system the unnecessary labelling and unnecessary identifying of a husband or a wife as the guilty or innocent party in a marriage breakdown. Very often, either intentionally or unintentionally, both spouses contribute to some degree to the collapse of their marriage. It is a very rare case indeed where only one spouse is the contributor to a marriage breakdown. There are of course many instances where one spouse may contribute to a greater extent than the other to the collapse of a marriage but there is nothing to be gained from the courts having to try to pick out who is the guilty or innocent spouse.
The essential role for the courts to play is surely one in which they should determine, at the time the couple come to court looking for a separation decree, whether their marriage is a viable one, whether the relationship is retrievable or whether it has irretrievably collapsed. Section 2 of the Bill which reflects the recommendation made by the Oireachtas joint committee provides that irretrievable breakdown of marriage should be the one overall ground for the granting of a separation decree, and I hope that approach commends itself to Members of the House as was previously the case on Committee Stage. The decision that that should be the one overall ground was reached by the Oireachtas Joint Committee on Marriage Breakdown after two years of deliberations, having received in excess of 700 written submissions and held approximately 24 oral hearings in which representations were received from a cross-section of groups representing a diversity of views. In the context of all those groups, the view was that the courts should be empowered to grant separation decrees without having to engage in the labelling process and without having to determine in simplistic terms guilt or innocence for the breakdown of a marriage, as the courts have to do at present.
In that context it is worth recalling and noting on the record of this House that since debate on this Bill has started, no substantial group representing any major social organisation working in the area of marriage breakdown, no group working in the area of providing legal assistance for couples whose marriages have collapsed, no major church representing any segment of Irish society, have opposed this approach. The reason is it is agreed among all of them and, indeed, it has been welcomed. In opposing the Minister's amendment, I say it is regrettable he should again press this amendment, having had an opportunity to have it discussed in great detail on Committee Stage when it was rejected.
Solicitors spend 95 per cent of their time advising husbands and wives whose marriages have broken down about matrimonial law and representing them in the courts. It is worth drawing to the Minister's attention, regarding the Government law centres which operate under the aegis of the Department of Justice and deal primarily in the area of family law that their solicitors in their submission to the Oireachtas joint committee in 1985 emphasised, and I quote from page 49 of the committee's report:
The law, by insisting on one party proving fault, encourages conflict between the spouses. It actively discourages reconciliations between a couple.
It states also:
It should be possible for spouses to obtain judicial separation in the courts when a marriage has irretrievably broken down.
It is regrettable that the Minister has had no regard, in bringing this amendment before the House, to the very recommendations made by the solicitors employed by his own Department who have experience, so to speak, at the coal face in working with marital problems and who stated very clearly that separation laws should be based on the concept of irretrievable breakdown.
In dealing with the amendment he has tabled, the Minister referred to the provision in the Bill which allows the courts to reach a determination that a marriage has irretrievably broken down if it can be established that, "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 co-habit with the respondent." This provision will enable the majority of spouses who wish to seek a separation decree without exacerbating a marital conflict to do so by coming before the courts and proving in effect that they are totally incompatible and that their marriage has broken down. It is not a vague or woolly notion as the Minister today and in the past in the context of previous discussions of this Bill has suggested. A court will grant a decree only if it is satisfied that the marital circumstances are such that it is reasonable for the couple to separate and that the marriage has irretrievably broken down.
There is an essential linkage there. It makes it very clear that what the court will be concerned with is looking at the question of the viability of the marriage relationship. To remove this provision from the Bill would re-insert into the law the essential need for conflict in the courts between couples who seek separation decrees where they are still living under the one roof in the one household. It would move away from the approach recommended by the Oireachtas Joint Committee on Marriage Breakdown who emphasised there was a need to ensure that there was a means of establishing that a marriage had broken down without couples having to make allegations of matrimonial misconduct against each other. They emphasised in the context of the welfare of children that there was a great benefit in providing such an approach because in providing for a need to prove adultery, desertion or cruelty, you sought to maximise the matrimonial conflict, to drive a further wedge through the current court system between the spouses.
The joint committee's report acknowledges that where a marriage has broken down and a couple are estranged there is a need to provide a legal procedure which allows them to separate with court help, if such is required, in a civilised way so as to ensure that estranged spouses with young children will at a later stage be able to co-operate with each other as parents of their children. In talking about the welfare of children, and this Bill not providing adequately for it, the Minister has substantially missed the point that the Bill is concerned as much with providing a civilised means of enabling couples whose marriages have collapsed to separate as it is concerned with promoting the welfare of children and ensuring that if a marriage has broken down to the extent that the couple have to go to court there is a means whereby they can get court assistance without such court assistance endangering the possibility of future parental co-operation. Within the Minister's approach deletion from the Bill of section 3 (1) (f) establishing the fact that a marriage has broken down as a ground for the obtaining of a separation decree would ensure that this mechanism to allow separation decrees to be granted without the necessity to maximise the marital conflict would be removed from the Bill.
It is worth making the point that during Committee Stage the Minister claimed he was trying in effect not to follow the approach of the Oireachtas Joint Committee on Marriage Breakdown. He says now he is following that approach though patently that is not the case. He said his intention was to follow the approach adopted by the Law Reform Commission, and the Law Reform Commission's report on divorce a mensa et thoro, or judicial separation, published in 1983, in recommending that the law be reformed and that new grounds be provided for the granting of a separation decree did not adopt the approach of the Oireachtas joint committe. The Oireachtas joint committee representing all parties and all sides of this House, looked at the Law Reform Commission report and did not accept it and, indeed, proposed the formula we have in this Bill. However, the Law Reform Commission recognised the need to provide a basis for getting separation decrees in the context of couples living under the one roof in the one household and of couples who have separated but who have not agreed a permanent separation, without their having to prove cruelty, adultery or desertion, which would be required under the Minister's provision. The Law Reform Commission recommended that the proof of breakdown of marriage should itself constitute a ground for the granting of a separation decree and on page 43 of their report gave a variety of reasons why breakdown of marriage should be a ground in that respect. One was, and I quote:
...in support of breakdown of marriage as a ground for legal separation, ... some people, may prefer not to involve themselves in making allegations that their spouses have been guilty of matrimonial misconduct. Rather than make such allegations, they may wish to seek a legal separation on the basis that the marriage has broken down — a ground that involves no name-calling or criticism of the other spouses' behaviour.
Spouses who want to get decrees of judicial separation without engaging in name calling or criticism of each other's behaviour will, if this Bill remains intact with the current provisions contained in sections 2 and 3 unamended, be able to get such separation decrees where they are living in the one household by reliance on the ground of irretrievable breakdown of marriage coupled with establishing the facts necessary under section 3 (1) (f), that is by establishing that the family and marital circumstances are such that it is reasonable for them to live separate and apart. In essence to remove that provision would not only run counter to the views of the Oireachtas joint committee but would run counter to the views of the Law Reform Commission. I would prefer to rely on the view of the Oireachtas joint committee and the Law Reform Commission when they were considering our laws of judicial separation than on any view expressed by the Scottish Law Reform Commission dealing with the issue of divorce in Scotland, and I find it extraordinary that the Minister should come into the House and by implication suggest, that, rather than us following recommendations made by our own bodies within this State about our laws for judicial separation, we should enact Scottish divorce law.
To conclude, in regard to the question of children and the welfare of children, I have already made the point about how important is the breakdown principle in regard to the possibility of getting divorces a mensa et thoro— or judicial separations as they will be called now under the provisions of this Bill — without having to engage in name calling. That is important to note, because the Minister has suggested that this Bill does not contain adequate provisions to protect the welfare of children. Under the Bill if there is any immediate risk to children, section 12 (c) will allow the courts, where any immediate orders are required to protect the welfare of children, to make those orders under the Guardianship of Infants Act. Where any other court orders are required as regards protecting the welfare of children in the context of guardianship, custody, visitation rights or access matters under section 14 (1) (h) of the Bill the courts will also be able to make orders under the Guardianship of Infants Act.
In case any Member of this House is in any doubt about the court's powers under that Act, the provisions under the Guardianship of Infants Act, 1964, which are incorporated into this Bill expressly provide that, in determining any issue with regard to the guardianship, custody or welfare of children, it is the welfare of the child which shall be "the first and paramount consideration". This Bill expressly brings into operation the Guardianship of Infants Act, 1964, which has been with us for over 20 years which prescribes that any decisions in regard to children should be taken on the basis of their welfare being regarded as the first and paramount consideration, and in respect of which there is a tried and trusted body of judicial case law built up which, in the context of disputes between husbands and wives, has very clearly ensured that the welfare of children is fully and properly protected in so far as it can be in a Private Members' Bill.
If the Minister had wished to improve the Bill in regard to the welfare of children there are certain things he could have done that he has not done and that I cannot do in a Private Members' measure. Instead of the Bill having provisions, as it does, to simply improve the court structure, it was always open to the Minister to try to amend it to provide for a uniform system of family courts with special trained judges. That was not something the Minister saw fit to do, although we asked him on Second Stage to do so and indicated to him that we would be delighted if he did. If he was serious about taking additional steps to protect the welfare of children, that type of approach would have been helpful.
The provision of a comprehensive in-court welfare service to assist the judges in making decisions would have been an additional protection. That cannot be done in a Private Members' Bill without the Government wishing to insert such a measure in a Bill. There are a variety of additional protections that the Minister could have provided for that cannot be provided in the context of a Private Members' Bill. In the context of the Minister merely trying to tinker with the Bill and suggesting that we should import into our law parts of Scottish divorce reform recommendations, I find the comments made by the Minister in regard to this Bill not protecting the welfare of children very difficult to take seriously.
I would hope that I will have, as I had on Committee Stage, the support of all sides in this House in rejecting the two amendments the Minister is tabling which will only result in making it a great deal more difficult for couples who are living in very unhappy circumstances within their own homes and for whom the law currently provides no remedy to find a means of resolving their marital problems. If this amendment is made there will be many couples for whom this Bill holds out a great deal of hope at the moment who will have their hopes dashed and who will find themselves condemned to live in a collapsed and irretrievably broken marriage without any legal mechanism being available to them to help them and offer them the possibility of reorganising their lives in a civilised way.
I was grateful for the support this Bill received on Committee Stage and I want to put that on the record of this House. I hope we will have similar support on Report Stage in rejecting these two amendments the Minister has tabled.
I, too, and my party, will be opposing the Minister's amendments. I am disappointed to see the Minister has sought to reintroduce essentially what he moved on Committee Stage. The arguments he brings forward today are no different to those that he brought forward on Committee Stage. They were well thrashed out and well discussed; there was a lot of time spent on this item. It is not that this aspect of the Bill has not been given as wide a discussion as it ought to have but, the Minister sees fit once more to come into the House and attempt to change the basis of this whole Bill, which is to move away from the fault-based adversarial system within family law. I fail so see why the Minister cannot accept that the full House has spoken on this very principle on Second Stage and in special committee, and has very definitely followed a particular line right through the deliberations of that special committee. Yet the Minister still sees fit to bring it through on Report Stage, disregarding the views that the House has expressed so far.
I will repeat, because I feel it must be said again, that my feeling is that it is long past the time for these separation proceedings to be removed from the adversarial system of justice as much as possible. That said, I accept it is not possible to remove it completely, because when one person's word is put against that of another, as in the case of spouses opposing one another, one cannot move completely away from it; but one can — and this Bill is attempting to do that — move towards a situation where the courts are seen to encourage as much agreement between the parties as possible, and only the areas which are truly in dispute are decided by the court. It is widely recognised that it is extremely dangerous and damaging to the future relationship if couples, particularly those who have children and have to act in the role of parent for the period when the children are under their care. It is widely recognised that the system which exists at present for dealing with separation is very damaging not just to the spouses involved but also to the children. It is also widely recognised that the more adversarial the system is, the more trauma there is for the children, and the more the children are used by one party against the other. Whatever we can do to avoid that is absolutely essential. The Minister's amendment will, unfortunately, drive us back almost into the situation which we have today.
I believe we should take family law completely out of the normal judicial system. We should have a particular approach which, perhaps, is exemplified in family tribunals. On Committee Stage my colleague, Deputy Harney, attempted to introduce amendments which were ruled out of order which would have done this. It should be removed from the court-based system and into tribunals, and the law should reflect the fact that it is non-adversarial as far as possible.
I reject the Minister's amendment also because he sees fit to leave out a provision which relates to the one in the existing Bill at section 3 (1) (f) which allows for situations which are not set out in the other proofs for the the ground of irretrievable breakdown. There will certainly be some cases which will be taken on the basis of adultery or desertion or the other proofs that are mentioned here but I would agree with Deputy Shatter that in the majority of cases we will find that couples will make use of section 3 (1) (f) simply because it does not require them to come into court and take their marriage apart bit by bit. That is the danger that is inherent in the Minister's amendment. There is no choice left to a couple, they must go in and take their marriage apart, limb from limb, because they will be advised that if they do not do that they will lose their case. That is essential in the legislation. That is not good enough, as the Minister said, for a couple who live in the one house and whose marriage has broken down but cannot agree on the terms of their parting. It may be an element in the argument but it is not the entire one. The Minister's amendment is fatally flawed on that ground alone.
I should like to refer to what the Minister said about the welfare of children as dealt with in the Bill. It is quite a negative move to insist that a court should bring the children's welfare into every case despite the fact that their future and their welfare may be one of the elements agreed on by the couple. In other words, the Minister is encouraging a couple to bring the welfare of their children into court thereby, perhaps, putting pressure on them to use that welfare as a tradeoff against something else that is at issue in the case.
I cannot understand why the children's welfare should be dragged into every case. There are many instances of health boards taking children into care and there are defined circumstances in which such children are taken care of, whether given over to foster parents or put into residential care. The Minister in his approach to the Bill does not seem to think that there should be defined circumstances for interfering with parental rights over children, especially when they agree. When they do not agree it is a quite legitimate for a court to inquire as to the circumstances. I question the constitutionality of bringing the welfare of children into every case when parents have expressed a view on it and agreed.
I do not wish to delay the House on this issue because what we are referring to was highlighted before. The point against the Minister's amendment is that he wishes to maintain effectively the adversarial system which we have and, in his amendment, seeks to deny the opportunity to couples who wish to separate without mud flinging to the nth degree. He is denying them the opportunity to go to court and prove it or otherwise that their marriage has irretrievably broken down. I do not accept the Minister's argument that the term "irretrievable breakdown" refers simply to divorce. We are not dealing with divorce, we are dealing with a separation which a couple recognise but cannot agree on the terms on which they will separate, such as the care of the children or other aspects. In many cases couples would welcome the fact that they do not have to drag up every bit of dirt that occurred over the years in court. They are forced to do that at present and for that reason I oppose the Minister's amendment.
If there is one thing to be thankful for it is that at least we have brought the Report Stage of the Bill into the correct forum for discussing it. I was beginning to wonder whether the entire debate was going to be carried on exclusively in the letters column of The Irish Times. This is a more appropriate venue for the various issues to be discussed rather than in the letters column of that newspaper. I do not think it was helpful that that exchange of correspondence took place in the run-up to the Report Stage debate.
Like my colleague, I do not wish to delay the House too long by going over ground that has been covered at considerable length on Committee Stage but I should like to make a number of points. There has been a lot of talk to the effect that courts are a bad place to deal with family difficulties and that they should be taken to some other venue. I have heard the word "tribunal" mentioned as though for some magical reason "court" is bad but "tribunal" is good. What is a tribunal except a place where people go to have their difficulties resolved and where one person presides. There is not a great deal to choose between a court and a tribunal and we should get away from this kind of cant or using emotive expressions in regard to the subject. There is no practical difference between a court and a tribunal; essentially they are the same, one person presides and decides after people have presented their cases.
There has also been a lot of cant about the adversarial system and some suggestions put forward that in some way the Minister's amendment, which we will not be supporting, is to the effect that the adversarial system is bad while the Bill, which gets away from it, is good. I do not see that as a fair point. In both cases one is an adversarial position. If that was not the case one would not be going before the court. If one was not in an adversarial position one would be negotiating with solicitors, or with the other partner, or with the aid of an arbitrator and resolving difficulties by means of a separation agreement. Once one reaches the stage where one is availing of the provisions of the Bill one is in an adversarial position. To be fair to the Minister, it is unfair to make that point as far as his amendment is concerned.
Section 3 (1) (f) states:
(f) that 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.
The idea is being put about that that gets away from any adversarial position arising. I do not think that is so. I can visualise lengthy adversarial discussions taking place, and evidence being put forward, as to whether it was or was not reasonable for an applicant. Such a question would surely involve the circumstances of the marriage that had gone before. I do not see that that, by some mystical process, avoids the adversarial position arising in a dispute. We have to face the fact that when one is in a court domain it is an adversarial situation. If it was not there, one would not be in the court situation at all.
The principal difficulty with the Minister's amendment — and I looked at it as sympathetically as I could — is that it is too narrowly based apart from the one ground of consent which was based on the original amendment which I moved on Committee Stage. The grounds listed are not adequate to cover the needs of a modern society on this issue. That is not to say I am entirely happy with the drafting of the Bill as it comes before us now. I do not think it totally reflects what the intent was either in the Law Reform Commission report or in the report of the Joint Committee on Marriage Breakdown. When we were debating this on Committee Stage I said I felt that the drafting of it was perhaps over-tortuous and could conceivably give rise to difficulties in court. Deputy Shatter knows more about it than I do but my reading of it is that it could possibly give rise to difficulties. The Law Reform Commission report and the report of the Joint Committee on Marriage Breakdown had one thing in common and that was that they saw the concept of breakdown of marriage as an adequate ground in itself for legal separation. That appears to be the case from the Law Reform Commission report, page 46 which states:
After much consideration we have come to the conclusion that the better approach would be for the legislation to include breakdown of marriage as an extra ground for legal separation.
That is in addition to such other grounds as would be appropriate, desertion, separation or whatever. The report of the Joint Committee on Marriage Breakdown, when summing up the situation at paragraph 7.3.8 states:
In considering whether or not a marriage has irretrievably broken down, the court should be satisfied that such a breakdown has occurred if an applicant proves one of the following:—
That is totally acceptable to me as far as it goes. In other words if any one of those things are proved then that should be the end of the matter and any of those single grounds independently would constitute irretrievable breakdown. What it does not say is that there might not be other grounds or that there could be an irretrievable breakdown per se, without anything else. That kind of situation is well implied in the report of the Joint Committee on Marriage Breakdown and it is certainly implicit in the Law Reform Commission report. I would have thought that a more straightforward and simpler method of going about the drafting would have been to have listed the possible grounds and given those as adequate to prove that irretrievable breakdown had taken place but that the breakdown itself, even independently of one of those grounds, would be regarded as a ground for judicial separation.
Taking the two positions now before us — the Bill which is before us now and the Minister's amendment as drafted — I would have to say that the Minister's amendment is altogether too narrow to meet the situation and we could not support it. So far as the point about children is concerned, obviously looking at the matter from outside, one would be concerned that the position of children would be taken care of and would be protected. That would have to be regarded as a very important factor. One also has to recognise, of course, that when the parties to a marriage — or should I say spouses at this stage — reach the position where they are coming before the courts on a judicial separation application, the situation of the children at that time alone has already been adversely affected. All one can do at that stage is to ensure that the maximum possible protection is provided for them.
I am satisfied that section 12 does all that can reasonably be done to protect the children and to provide for them having regard to the fact that their situation must inevitably have been adversely affected by the difficulties that would have arisen with their parents when that stage is reached. To sum up, the Labour Party will be opposing the Minister's amendment for the reasons I have stated.
I am slightly afraid to get up and speak here lest I might be accused of delaying the proceedings. I wish to make it quite clear that I want to put on record my feelings in relation to this matter. I do not think we should be accused on this side of the House of unduly delaying the proceedings in relation to the Bill. The fact is that Committee Stage went through quite expeditiously and at no stage did we delay. If the record was examined it would possibly be seen that more speaking was done on the far side of the House than on this side.
I listened with great interest to what Deputy Taylor had to say. Indeed, he made similar noises when we were discussing this section on Committee Stage. I thought his contribution both there and here today quite reasonable and very fair in that some other speakers on the far side of the House would try to allege that we on this side of the House are trying to stop judicial separation altogether. Deputy Taylor put his finger on it when he said it is unjust to say that the Bill, as drafted, brings in a no-fault system and that in some way the Minister's amendments, as proposed, do the opposite to that. That is very unjust and unfair. It should go out from this House that we on this side of the House have the same idea for widening the grounds for judicial separation. In our Programme for National Recovery it is stated:
Fianna Fáil will reform the existing court procedure for dealing with family law cases to minimise the legal trauma for all involved and would introduce court procedures which will shift the emphasis in litigation from confrontation to factual inquiry.
The report states further:
The grounds on which judicial separation can be obtained will be extended to include desertion, constructive desertion, separation for a period of three years or, where both spouses consent, a lesser period provided that the spouses have availed of counselling.
What could be more reasonable than that? It mirrors exactly what the Minister has proposed in his amendments. Deputy Taylor's contribution both here and on Committee Stage was reasonable and fair in that he did not dismiss altogether the Minister's amendments and he saw some merit in them. Yet when it came to voting he went back to the Bill as we have it now before the House and he did not, at any stage, vote with the Minister in relation to it. He said that the Minister's grounds were too narrow and that it boiled down to paragraph (f), which is at issue between us. It is possible that section 2(1)(b) of the Minister's proposed amendment would take in what Deputy Taylor, and indeed a number of other Members, have suggested, that that could be used in order to deal with other cases which would not come under any of the other sections.
The Minister mentioned that irretrievable breakdown was a concept which was more or less alien to judicial separation. I agree totally with him. Suppose a spouse, a wife, applies for judicial separation on the basis of irretrievable breakdown and, under the provisions of this Bill, succeeded in getting such a decree in court, then let us suppose that in six months, eight months, a year's time or even in five years time the parties get together again — and that is not inconceivable — that spouse, the wife, would have to agree with her husband that the marriage had not irretrievably broken down. The whole idea of judicial separation is that there is still a marriage, still a hope that at some future date there may very well be reconciliation. To me that constitutes the nub of the provisions of this Bill.
As far as I am concerned, the possibility that the parties to a marriage will get back together, however remote that possibility may be, the fact that the two spouses have said that their marriage has broken down irretrievably and obtained a court order to that effect renders some credence to the suggestion — if this Bill is passed into law — that the law is an ass. If this Bill is enacted and such circumstances arose that would be the case.
Many speakers on the far side of the House made great play of the fact that the provisions of this Bill do away with the fault concept. I cannot see that. I think Deputy Taylor said that the provisions do not do away with the fault aspect. For instance, under the provisions of the Bill, if someone attempted to prove adultery they would have to prove fault. Again, if they initiated legal action on a number of the other grounds on which Deputy Shatter's Bill is based, they would have to prove fault. As Deputy Taylor correctly pointed out, it is nonsensical to say it is not adversarial because, in circumstances in which couples can agree, they go to their solicitors and get legal separations by way of deeds of separation. If they cannot agree they will go to court or, likewise if there is some other problem, they will take it to court. That is where the adversarial aspect arises. If they go to court on a number of such grounds they will have to prove fault. That is the whole idea of going into court, to a tribunal or whatever; that is the reality. I would have to say that a court, in determining a judicial separation application, would have to take into account all evidence and circumstances pertaining to a given case. Obviously they would have to delve into the whole area of who was at fault or which party was more at fault than the other.
The point was raised earlier on Committee Stage and must be emphasised, that the provisions of the Bill, as presented, go further than the recommendations of the Oireachtas Joint Committee on Marriage Breakdown in that not only do these provisions say that one has to prove that a marriage has irretrievably broken down but, in addition, one has to prove at least one of six further grounds.
I entirely agree with the Minister that this could very well render the granting of an application for judicial separation more difficult because the parties would have to prove irretrievable breakdown in the first instance and also one of the other grounds whereas under the provisions of the Minister's amendment they would have to prove one ground only. That fact must be emphasised and it has not been in any of the contributions emanating from the far side of the House, the people who support the Bill.
I can foresee cases of people going before a court seeking a judicial separation experiencing some difficulty in proving that their marriage has irretrievably broken down but yet, for instance, proving that there was adultery involved. That fact has not been sufficiently explained or emphasised. If there is an answer it has not emerged from the far side of the House.
It was most unfair of people to contend that Fianna Fáil were delaying proceedings. I might reiterate that Fianna Fáil have proposed what are in my view reasonable grounds for judicial separation. What we take issue with is the fact that, in addition to those grounds, one must prove irretrievable breakdown. I would contend also that section 3(1)(f) — and Members on the far side of the House have agreed — constitutes a catchall phrase inserted in order to get every other case involved, as it were, to allow carte blanche for people to take legal action on the most trivial grounds and apply for judicial separation. That is not right. This is a very serious matter. Despite the impression others might like to create, we on this side of the House are treating it as a very important issue. That is why we deliberated on it on Committee Stage and are here again today to put our point of view, because I believe it to be a point of view represented in the country.
I should like to comment on the Minister's amendments and to say that the message must go out loud, clear and unambiguously from this House, that there is all-party agreement on the principle behind the provisions of this Bill. It is important for us to declare again that all-party agreement was present from the first day this Bill was introduced and accepted by Government as one they would support in principle and allow progress through the House on that basis. It would appear from some of the earlier delaying tactics of the Fianna Fáil Party and the more recent development of correspondents' columns in a national newspaper, that this all-party agreement had disappeared. It must be made absolutely clear that this House is seriously attempting to address the very unsatisfactory nature of our current law that very inadequately addresses the subject of marriage breakdown.
Deputy Shatter has pointed out that the Bill he has drafted and presented follows very closely the recommendations of the Oireachtas Joint Committee on Marriage Breakdown which committee reported in 1985 after very considerable deliberations. The provisions of this Bill constitute an effort by us, as legislators, to deal with the unsatisfactory outcome of the referendum on divorce. The people pronounced that the Constitution should not be amended to allow for divorce and in the vacuum created subsequently we are now endeavouring to give some hope and assistance to people faced with the trauma of marital breakdown.
I agree with Deputy Ahern that if this Bill is enacted then the law will seem to be an ass. Within the context that we failed to deal with the whole question of marriage breakdown in the most sensible, logical way, that is to provide for divorce, then perhaps we are rendering the law somewhat more nonsensical, or more of an ass.
Having said that, the Minister's amendments must be examined more closely. There are three basic grounds of objection by the Minister to Deputy Shatter's proposals in sections 1 and 2. He suggests that the concept of irretrievable breakdown is not appropriate. By way of the provisions of this Bill we are endeavouring to present a single statement reflecting a logical approach to the problem. We are saying to married couples in this State that, where their marriage has gone wrong to the extent that they believe and can convince a court that things cannot be put right at a given time, then they should be entitled, with the judicial imprimatur of the court, to separate and live apart. In endeavouring to clear up the mess, the nonsensical legal position obtaining, the very least we can do is make one single legislative declaration such as that contained in the provisions of section 2, as proposed.
Where a couple believe that their marriage has irretrievably broken down they should be able to look to the court for assistance in separating on whatever basis possible. That is the basis on which we can clearly and forcibly say that it is an appropriate concept in the context of the way in which our law stands, but it is not beholding of the Minister to quote judicial or legislative precedents in other jurisdictions, which have sensibly and logically faced up to this question and provided the one solution which should exist, namely, divorce, in trying to cobble together another Irish solution to another Irish problem.
The Fianna Fáil Party should at this stage appreciate what is being attempted here. I understood that all of us were setting out to make a simple, logical legislative declaration so that people would know where they stood in regard to the law when a marriage breaks down. If we were to go further and look at what is proposed in the Bill and in the Minister's amendment together we will see that we are proposing virtually the same thing. There is little or no difference between the sides of this regard. The grounds have been restated and there has been an ingenious rejuggling, perhaps to reflect the gravity of the sins as the Minister would see them, with adultery being put first whereas in Deputy Shatter's proposal it comes second. Apart from that there is no difference, except for the omnibus section which is a source of great worry. In drafting legislation it is normal to allow for a residual omnibus provision. This simply recognises that we, as legislators, might not consider all the different sets of circumstances which can arise in a relationship and which might present themselves to a judge. In those circumstances, provided the judge is satisfied, we give him residual authority and power to adjudicate within the principles of the law as laid down, which may allow for interpretation, which tells the judge under the sui generis rule where he is obliged to interpret paragraph (f) he must do so in the logical consequence and context of the other provisions. It does not allow for a nebulous action on the part of a judicial authority. It is not at all convincing for someone to come into this House to say that they are unhappy about this wide sweeping, could mean anything provision under paragraph (f).
As I understand from his contribution on Committee Stage and from a letter published in the letters column of a newspaper the Minister's final concern is that the law as it stands does not help or protect children. I have to be careful about which word to use but I was both curious and furious when I saw the amendment tabled by the Minister on Committee Stage. I was somewhat pleased that the lobby to which he was playing did not take up the handle and run with it. It must be made absolutely clear that this amendment is utterly and totally superfluous. It is not necessary in the context of family law legislation. In the 1964 Act we laid down one of the most solidly based provisions and that has been developed to a fine degree by judicial interpretation. If there is anything that could be said it is that the position of children is very well protected, could not be better protected. In all matters with regard to custody of paramount importance must be the welfare of the children. It is for that reason I say that what is being presented by the Minister is superflous and unnecessary.
I am very concerned with what Fianna Fáil are at in tabling the amendment. Last week we had an opportunity to make a comment on the Minister's attempt to shower praise on himself in regard to the legislation he introduced in respect of the abolition of the right of action for the restoration of conjugal rights. The point was made at that time that we would have an opportunity to test the commitment of Fianna Fáil to family law reform when we came to discuss this legislation. Over the past number of years we have managed to deal with great fortitude, and with no credit to us at all, so late in the day was it done, with the concept of illegitimacy, with domicile of dependency and with the equalisation of rights under the alien legislation. Fianna Fáil said they were doing a good job and that they should get a pat on the back. I believe that when we get down to implementing fundamental reform and dealing with the question of marital breakdown, which is the one question this House has not been able to grapple with for decades, each and every one of us will be put to the test in terms of our commitment.
I was worried when Deputy Ahern remarked that if the Minister's amendment is not carried he would consider the law as being unsatisfactory from his point of view and, I presume also from his party's point of view. They advance the argument that this concept is inappropriate as the marriage would still exist and they postulated the tired example of a couple who obtained a declaration of irretrievable marriage breakdown and then find weeks, months or years later that there is something they can work on and because of this they will find themselves in a ridiculous position. We cannot take these provisions out of context.
It is the law that is ridiculous.
The objective of this legislation is that every avenue open to the couple for reconciliation should be investigated and pursued before the matter can be presented before the courts. A judge then has to be satisfied that the marriage has broken down irretrievably before he can make a declaration. If the couple then realise that there is something to build on there would be no problem in having the order vacated, in the partners cohabitating together and doing their best to get back together again. This already happens under the legislation in regard to barring orders under which the court effectively orders the parties to live apart on either a temporary or a long term basis. There would be nothing to stop the parties coming back to say that things had been worked out, that lessons had been learned and that they wanted to get back togther again. Just because a judge grants a barring order for 12 months it does not mean that in the interim period the couple should not seek to vacate that order, to appeal it and to have it set aside.
The Minister should not put forward spurious arguments against what is good legislation, and he should not do so at a time when we are all talking about virtually the same thing. I am worried, and I have said this before, that if Fianna Fáil do not get their way despite the recommendations of the Oireachtas committee which we are following and despite strong debates on Second Stage, Committee Stage and here again today, they intend to pursue these issues afresh in the Upper House. That is the worrying aspect of all of this. It is where the real test of commitment to reform of the family law provisions sought to be promoted in this Bill will come to be shown and where Fianna Fáil will ultimately get their way to do down what is otherwise very good legislation.
I believe that everything which needed to be said has been said. We are saying exactly the same things to exactly the same people as we did earlier this year. Fianna Fáil make the case that this matter should be debated fully and openly. We are debating it in public in the presence of virtually all the Deputies who were at the special committee but we are making all the same arguments and the same points again. I appeal to Fianna Fáil to remember the principle on which we embarked on this legislation — all-party agreement to try to do something for very troubled people who are left in an unsatisfactory limbo by reason of the inadequacies of our law — and to allow this legislation to work its way through. It is good legislation and The Workers' Party believe that it does not require any amendment at all because it is well presented. This legislation should be allowed a speedy passage through the House.
I think there is all-party agreement that there is a need to amend the law in relation to judicial separation, that this should be done in a caring and sympathetic way and that the problem should be dealt with at this stage. I agree that over the years there has been a need for legislation such as this but the kernel of the debate is whether the words "irretrievable breakdown" should form one of the bases on which a decree of judicial separation should be granted. The word "irretrievable" means irreversible or irreconcilable. Something is either irretrievable or it is not. Judicial separation does not put an end to marriage; judicial separation is not divorce. In those circumstances one has to ask oneself the question: what are the words "irretrievable breakdown" doing in legislation dealing with separation? Therefore, it would be illogical to describe a separation as an irretrievable breakdown of marriage. A breakdown in a marriage may lead to a decree of judicial separation but can any logical person say, where one is granting a decree of judicial separation, that it is, in fact, irrevocable breakdown or irretrievable breakdown in every case? This Bill ensures that those who go into court must prove not only one of the grounds on which the application is sought but also prove that the marriage has broken down and that it is irreversible and irreconcilable. I do not believe that the words "irretrievable breakdown" have any place in judicial separation legislation. I know of no other jurisdiction which uses the terminology "irretrievable breakdown" in judicial separation legislation. The word "irretrievable" is widely used in divorce legislation and I believe it belongs in divorce legislation. For logical reasons, and linguistic reason alone, it clearly does not belong in legislation dealing with judicial separation.
The argument has been made, and made very well and ably, that section 3 (1) (f) of this Bill takes away the element of fault and that there is no longer a need to prove fault in proceedings dealing with judicial separation. I, too, wish the world were perfect, but the world is not perfect. Far from eliminating the fault concept from judicial separation legislation, the Bill — by utilising the words "irretrievable breakdown" and by ensuring that an individual going to court must prove not just one of the grounds which Deputy Shatter sets out in his Bill but also that a marriage has irretrievably broken down — immediately introduces fault in an adversarial situation. For example not only must one prove the fact that the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent but one must go on from there and prove that the marriage has irretrievably broken down. With regard to adultery, not only must one prove that adultery has been committed but one must go on from there and prove that the marriage has irretrievably broken down.
With regard to the provision that the court must grant a decree of judicial separation to the parties in a marriage who have separated for three years one could validly argue that we are coming as close as we possibly can to a no-fault situation. But in so far as this is a no-fault provision, that the individuals must have been separated for three years and that one party can get a separation, the no-fault provision is taken out by Deputy Shatter because he believes that not only must one prove that one has been separated for three years but one must go on from there and prove that the marriage has irretrievably broken down. The Minister's amendment leaves out the words "irretrievable breakdown" and one does not have to prove that. If a person can establish that he or she has been living separately and apart from his or her spouse for a period of three years, he or she will be granted a decree of judicial separation. It is that provision of the Bill which comes closest to a no-fault provision but Deputy Shatter, so to speak, defeats the purpose of his own avowed intentions by ensuring that the applicant must also prove that the marriage has irretrievably broken down.
I want to pose the question of how one, in a court room and in an adversarial situation, proves that a marriage has irretrievably broken down. To prove that a marriage has irretrievably broken down means that one must impute fault for the respondent. One must say that because of certain circumstances existing with a marriage or because of some reason which is probably caused by one or other party, the marriage has irretrievably broken down. In proving that a marriage has irretrievably broken down one is proving something which goes to the very core of the marriage itself. One is saying that the marriage is at an end and it is ridiculous to assume that the court will not want to know why. It will have to know why it should make a very serious decree and say that a marriage has irretrievably broken down, is finished for ever. That is a very serious order for any court to have to make. The court would have to make an inquiry into that kind of situation.
The argument has been made that section 3(1)(f) of the Bill which provides "that 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 co-habit with the respondent" is a no-fault clause. This provision appears to mean that the applicant goes to court and establishes that it is reasonable for him to wish to live separate and apart from the respondent. May I ask when is it unreasonable for the court to grant a decree under section 3 (1) (f)? I suggest it would be unreasonable for the court to grant a decree under section 3(1)(f) when the respondent has done nothing to make it reasonable. Clearly, any fairminded person would consider that would imply fault and this is inherent in the adversarial system.
It would be marvellous if it were a perfect world and were possible to have an absolute no-fault provision in legislation. However, the tragedy is that we do not have a perfect world. In my view, it is nonsensical to say when one is trying to prove something is reasonable or unreasonable that there is no fault. Unfortunately there has to be fault on someone's part. When is it reasonable for the applicant to wish to live separate and apart from the respondent? The answer to this is not set out in the legislation. Deputy Shatter has said on one occasion that it covers the case where two people living in the one house are effectively living apart. The Minister has said in an amendment that this would be provided for. It is fair that it should be provided for. In order to say that it is reasonable for the applicant to wish to live separate and apart from the respondent, you have to rely on the court to decide as the legislation now stands. This means that the court exercises a discretion as to what is or what is not reasonable. If this legislation is passed, there will be a large body of case law dealing with what is and is not reasonable. It is too broad and also vague. For example, if the husband gets on the wife's nerves for some reason — perhaps slobbering when eating — is that reasonable? The court is being handed discretion in a very serious matter, the marriage bond, and in future years the legislation may be broadened to a far greater degree than was ever intended by this House. It is handling over what I would regard as the responsibility of this House to the Judiciary, which is unfair to the Judiciary.
It has been said that if the Government amendments are passed many people will lose out and will not be able to get a judicial separation, even if both want it. This is clearly ridiculous because the Minister has provided in the amendment that if the parties to the marriage have lived apart for a period of one year immediately preceding the application and if both parties so consent, the court must grant the decree. Therefore, if the two people consent, after having separated from one another for one year, the decree will be granted. Therefore it is misleading to say that many people will lose out. Should the situation arise where one party to the marriage does not agree to a judicial separation after living apart for one year, the legislation is quite clear that after three years one party can apply even if the other party does not consent.
In regard to the provisions proposed by the Minister for dealing with children it is extremely important that the court in judicial separation legislation should of its own volition decide how the children should be provided for, in other words that there be no necessity for an application by either spouse. This is perfectly reasonable and should be accepted because very often in the tragedy of marriage breakdown, the children of the marriage suffered most. The children face great trauma and very often face a most uncertain future. It is clearly essential that the court be allowed to protect as far as it is possible the children in the case of a tragedy of a broken marriage. There is absolutely nothing wrong with the court taking account first and foremost of the position of the children in the marriage breakdown, as children have suffered the most in these situations.
In my view it would be foolish for the Opposition Deputies or parties not to agree that the children of the marriage should be considered first and foremost by the court. It is virtually certain that the children were not responsible for the breakdown of the marriage. The children in this situation need the sympathetic and decisive action of the court to protect them.
The argument that irretrievable breakdown must of necessity remain part of the legislation in order to express what has been described as no-fault judicial separation is inherently defective. I believe that the inclusion of the words "irretrievable breakdown" merely encourages people to prove that the marriage has irretrievably broken down when, in some cases, it may not have. In the event that people wish to be reconciled, I believe that the inclusion of the words "irretrievable breakdown" is a barrier to such a reconciliation because in front of their neighbours and friends in a court of law it has been decided that their marriage has irretrievably broken down. You cannot reconcile irretrievable breakdown with judicial separation no matter how one twists the words. No matter how one tries to interpret the words, it is clearly logical that separation is a separation and that irretrievable breakdown is something different altogether.
Listening to the debate, I was interested to note the number of speakers who have prefaced their comments by saying it was not their intention or wish to delay the passage of the Bill. There must be an underlying feeling of guilt. I have not been a Member of this House for a long time, but I think it is somewhat strange that this evening we should be entering the third hour of a debate on legislation which we have dealt with word by word on Committee Stage.
I was somewhat surprised to see the Minister coming back with the same amendment that was defeated on Committee Stage by a committee of this House. I would like to place on record that people have spoken on all these points already and that we are not listening to anything new. I take issue with what Deputy Ahern has said, but I agree that he has a point when he says we have heard absolutely no arguments today that were not dealt with on Committee Stage some months ago. Having listened to speakers on the Government side, I think there is a fundamental contradiction as to where they stand. An undercurrent that tends to appear every so often when dealing with the question of irretrievable breakdown is whether Fianna Fáil believe the concept to be too narrow or too broad. I hope the Minister will address this when replying to the debate. Does the Minister consider section 3 (2) paragraphs (a) to (f), inclusive, as outlined by Deputy Shatter to be too broad or too narrow? There is a feeling among certain members of his party that the provisions may be too narrow while others feel that they may be too broad.
Deputy O'Donoghue has succeeded in doing what he did on Committee Stage when he brought in a red herring by referring to divorce-type legislation. It is very unfair and inaccurate to describe what we are dealing with today as divorce-type legislation. Referring specifically to section 3 (1) (f), he said that the concept of irretrievable breakdown was being brought into this jurisdiction. He described it as divorce-type terminology of an alien nature. I do not know very much about divorce law in other jurisdictions, but I know that it is possible to vacate or discharge a divorce and that parties who have a decree of divorce can re-marry each other. If Deputy O'Donoghue's point is that irretrievable breakdown relates to divorce, I would point to the case of a well-known actress who vacated a decree of divorce, notwithstanding Deputy O'Donoghue's argument that it is irretrievable by nature. The fundamental point we are dealing with is the concept of irretrievable breakdown contained in section (3) (1) (f). It is important to keep the terminology of that section as it stands.
The joint committee received approximately 700 submissions and deliberated for more than two years. It is important that we should not take their opinion lightly. The report of the committee states that grounds for judicial separation should be geared to show that a marriage has broken down rather than to find which spouse is guilty. That is the nub of the problem. We want to move away from laying blame and finding fault. Nobody is claiming that we would have a "no fault" system. Unfortunately there will be an element of fault, blame and recrimination in almost all cases; otherwise we would be seeing the deed of separation rather than the court hearing. The Bill as it stands minimises the fault and the trauma and reduces the difficulties in itemising the specifics — adultery, cruelty or whatever else. We have succeeded in section 3 (1) (f) in suggesting a device which will reduce that trauma.
The court must look at the overall circumstances of the breakdown. Both parties must be able to go to court and say they have a problem, without going into great detail as to the origin of the problem. A couple should be able to admit that both are at fault. Under the terms of the Minister's amendment it would be difficult to have such an arrangement. If for no other reason, it is important that section 3 (1) (f) should remain intact.
A number of speakers mentioned reconciliation. I would readily agree that reconciliation is of fundamental importance, but very little can be done about reconcilation while going either up or down the steps of the courthouse. When proceedings issue and a case is listed for hearing, there is very little scope for reconciliation at that stage. I should like to think otherwise but the reality is that once proceedings have issued a marriage is heading for an unhappy end.
The Minister dealt to some extent with the finality of separation. He feels it is not fundamental that a decree of separation should be final and believes that the door should be left open to a coming together or a re-uniting of the parties. He said that if section 3 (1) (f) were to be passed we would be seeing the finality of separation. I would not agree. A later section of the Bill contains a provision whereby the parties can have a decree of separation vacated. Section 9 (2) provides that following the granting of a decree of judicial separation the parties can come together at any stage in the future. Allowing for that safety valve, we have to look at the number of separations to date and the number of cases where parties decide, for better or worse, to come back together. The number of such people is negligible once they have gone through the trauma of effecting a decree of separation. We are not dealing with reality when we say that couples may come back together at a later stage. Statistics do not provide evidence of reconciliation.
Our over-riding consideration must be the report published by the all-party joint committee. I will not go into detail on the various groups who made submissions. Every group in society had an opportuntiy of contributing and the committee's recommendations were not produced lightly.
Deputy Taylor felt that the grounds available under section 3 were not sufficiently wide. He spoke about adultery and desertion and parties living separately for a three-year period. The concerns expressed by Deputy Taylor are met by the provisions in section 3 (1) (f), which allows for an over-riding concept of marriage breakdown, allowing the court to take a broad look at the marriage rather than to itemise and specify.
The Minister will have to address himself to whether the Bill is too narrow or too wide. Perhaps the next speaker from the Government side will do that. There is an impression that they are not too sure. There is a fear of divorce-type legislation from the Deputy O'Donoghue wing, yet Deputy Ahern can say that seciton 3 (1) (f) taken with the earlier paragraphs may give rise to too much difficulty in obtaining a decree. What are the Government party talking about in their opposition to this section?
A fear was expresed by Deputy McCartan that, if certain amendments were not carried in this House from a Government point of view, amendments might be put down in the Seanad. If that happens we in this House will have a further opportunity of debating and voting on these amendments. From that point of view, we cannot allow the passage of this Bill to de delayed further. Quoting from the Programme for National Recovery is all very fine but putting the provisions in terms of that programme into effect is an area where we have not seen much progress.
Most of what is being done here is the opposite to what is in the programme.
Bringing legislation forward is one thing but pushing it through the House, enacting it and having the President busy with his pen is another thing. I hope he will sign this legislation unamended, as speedily as possible.
I took note of how long the previous speaker took delaying this legislation — approximately 20 minutes. It now appears he does not want anybody else to make a contribution. I was sitting here, an innocent bystander, and looking with great fascination at the centrepiece of discussion, that is, the present ministerial amendment to sections 1, 2 and 3 of Deputy Shatter's Bill. I did not intend making a contribution, and I would not say I was forced into making one, quite the contrary, but in the light of the self-righteous stridency from a number of Opposition speakers that we on this side do not have a right to make a contribution, I felt I might as well throw in my new penny's worth.
The thrust of the Opposition's contributions seems to be to put the Government off side, and the Minister in particular, not to mention people like myself. This Bill is not about divorce. What we are trying to do is to perfect the imperfect. I have to bare my soul in this regard. The FitzGerald referendum was met with contumely and contempt by the Irish people. I felt it was brought forward too quickly. If we wanted to bring in divorce, which I support and have consistently supported during my 25 years in this House, then was not the time to introduce that referendum but ten years hence. Maybe at that time a referendum on divorce would pass. However, the people in their wisdom decided they did not want divorce and what we are dealing with now is a direct result——
If Fianna Fáil had encouraged them a bit it might have helped.
The people were entitled to take whatever position they wanted. I want to explain my position on matters of that nature. I do not want to put anybody offside in respect of their views. Deputy Taylor made an excellent contribution, if I might respectfully so suggest. That is my opinion, nothing more and nothing less. I have always taken the view that Deputies are entitled to express their views whatever the Government of the day say. As a Government backbencher, I do not feel bound by what the Government of the day say. That is being domocratic and I think the Government of the day would see it that way.
As I said, what we are trying to do here is perfect the imperfect. We are left with Deputy Shatter's Bill on the one hand and the Minister's amendment on the other. The Opposition expressed strident condemnation of very reasonable contributions from my colleagues, Deputy Ahern and Deputy O'Donoghue whose contributions were excellent. The Opposition are entitled to make their points. They say there is a Deputy O'Donoghue wing and a Deputy Ahern wing of the party, and realising a bird flies on two wings now we have the Deputy Andrews wing of the Fianna Fáil Party. What bird flies on three wings?
Could we fly back to the legislation?
This may cause confusion. I was not a member of this committee and I was always sorry for that, but am I to be prevented from making a contribution because I was not a member of that committee? My views were not expressed even by those who represented my party. That is why I am making this contribution.
I support the Minister's amendment. Deputy Shatter's Bill deals with divorce, which I cannot see coming into law in this country for a number of years. I congratulate him for bringing this Bill forward. He has done a very good job for people who are suffering trauma in their marriages but if we are seeking perfection, there is one area he has omitted — I am sure he did not do it deliberately, he mentioned if from time to time — that is, children of a marriage. I take the view that in the final analysis consenting adults are the authors of their own fortune or misfortune, but in the circumstances we are talking of the children who are the misfortunate ones. The Minister has properly provided very correct guidelines for children of a traumatised marriage, and it is reasonable that he should have done so. I am sure there is a very good reason for Deputy Shatter not dealing in depth with that area in his very generous proposal. The Minister does deal with the children. He is not meant to quote legislation from outside this jurisdiction in support and in defence of his position but that is the impression given by some speakers from the other side. The Minister is entitled to express any viewpoint and to defend his position. To say he should be brought into contumely and contempt for taking a particular position is unreal and unreasonable.
I make no apologies for this short contribution. I congratulate Deputy Shatter for producing this legislation, imperfect as it may be. Having heard the Minister's response to Deputy Shatter and not being sycophantic, I think the Minister's explanation merited a lot of attention. I was always convinced that irretrievability was as Deputy Shatter fairly presented it, but now I have grave doubts. The Minister has presented his case and on balance, not because I am a Fianna Fáil backbencher but because I see the logic of his argument, and because he makes very clear provision for children I would be inclined to support him in a situation where I would like to see divorce. In the meantime, we have to get on with it because there is no divorce. We have to deal with the position as it is.
In relation to the leagues of decency, or of indecency — as set out, the question of committing adultery, unreasonable practice, if one year separation and so on — and the juxtaposition of whether the Minister includes adultery is not necessarily relevant — on balance, I support the Minister's position but I am not hypercritical of what Deputy Shatter is attempting to achieve.
The hype in the letters columns in the various newspapers prior to the introduction of this legislation was unfair to the House and did not do it justice. I am not denying the right of people to do what they did but it was wrong and was a disservice to a discussion in the House.
I wish to speak about the section of the Bill dealing with children. I agree with Deputy Andrews and I was a bit concerned when Deputy Colley said earlier that children should not be brought into all separation procedures. If I recall correctly, she said that children should not be used in these situations. I agree with her but it would not be right to take from that that somehow the Minister's proposals will mean that children will be used in cases. The Minister's argument is that the Bill does not go far enough to protect the position of children. His proposal is that the court would not grant judicial separation unless it was satisfied that satisfactory arrangements had been or could be made for the welfare of children, as is proper in the circumstances. He also said that the court can do this of its own volition. This is an important issue and I am glad that a number of speakers referred to it. Practical suggestions have been made which do not relate to using children.
Deputy Shatter's Bill does not place an obligation on the court and the Minister's proposals are far more satisfactory and practical. As other speakers said, the debate should not be about divorce; we are talking about separation and the effect of a decree of separation granted by the court is not necessarily final. If it was, we would obviously be talking about divorce——
If we had it.
The concept of irretrievable breakdown should not be used in this legislation and I do not know of any jurisdiction where it is used, certainly not in Northern Ireland or England. I support the Minister's proposals.
I want to speak very briefly about the amendment and the comments of various Deputies in relation thereto. I support — and supported on Second Stage — the general policy of introducing amending legislation to regularise and make more efficient the obtaining of separation in this jurisdiction.
In relation to the allegation, particularly by Deputy Colley, that the Minister's amendment would introduce a note of discord and, as Deputy Colley unfortunately called it, "muck throwing" in the litigation that would be carried out under it, I have looked at the two proposed sections and I have come to a contrary conclusion from that of Deputy Colley. To take one example of a ground for separation, under the Minister's amendment if a person commits adultery and the spouse claims separation as a result, then separation will follow. However, under Deputy Shatter's Bill, there is an additional requirement that irretrievable breakdown would be proven. There would be quite an amount of conflict in a contested adultery case and it would be followed by another contest — in extra time so to speak — where the parties would contest irretrievable breakdown. It is possible that parties in a very sad situation and for tactical reasons might not engage in too much of a tussle or so-called muck throwing in relation to an allegation of adultery and even a beaten party, a respondent who was found guilty of adultery, would find in this further proof of irretrievable breakdown, the possibility of endless muck throwing, discord and upset to a spouse who might be operating against the spouse who was guilty of adultery.
I can see the other grounds for a claim for separation, that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent, being debated and contested very vigorously in court. If that issue were decided upon by the court, then one would think that there could be no further question in relation to it. However, under the proposed Bill the whole issue can be reopened and indeed issues outside that broad ground for separation can also be reopened. Indeed, there could be further litigation with a sympathetic judge hearing the case.
Some of the other grounds for separation are mechanical, such as being separated for three years. A claim for separation based on the three year separation rule would be a very painless, non-controversial application and, under the Minister's amending proposals, there is no doubt that it would be clean, efficient and would not give rise to any great emotional trauma throughout the proceedings. Of course, there could be emotional trauma arising from the preceding facts and because the marriage was being dealt with through separation proceedings but the proceedings themselves would not aggravate the situation under the Minister's proposals.
Under the proposed Bill there would be a complete opening up of all possible factors in the marriage which might possibly reverse a bad result for one of the parties and which that party might seek to use to effect by bringing in this further test, this — if I were to use a vulgar term to describe it — injury time in separation proceedings. These are practical difficulties and we must remember that lawyers are very ingenious people. They seek to represent their clients in the best possible way. If they have an oportunity for a second go at a particular issue they will take it up and canvass it for what it is worth. Unfortunately one will find that, if the Bill goes through as proposed by Deputy Shatter, there will be many more needless disputes in court than there would be if the Minister's proposals were accepted.
I have listened with great interest to the various Deputies who have said that it is an absolute necessity to have section 3 (1) (f), which relates to the qualification for a separation, retained in the Bill. That paragraph provides "that 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 co-habit with the respondent". Through my experience as a practitioner and a public representative and through my general experience of life, I cannot think of any case which could not be dealt with adequately by the Minister's amendment. It would have helped considerably if the Deputies on the Opposition side were more specific in relation to what they meant by cases which would be most adequately dealt with by the provision of section 3 (1) (f). They may be insisting on a provision which may, in time, be discovered to be redundant.
In relation to the charges about whether or not the Government consider the Bill to be full of uncertainty, I am not in a position to speak for the Minister but my view is that there is too much uncertainty in the Bill. It is not desirable for this House to pass legislation which is full of uncertainty. Deputy Taylor took the point which I made in the special committee that one does not know how a case, say, in relation to section 3 (1) (f) might be pleaded. What sort of particulars would be given where one was seeking to establish a case for a spouse under section 3 (1) (f)? How would a court rule in relation to a request from the other side for particulars? Naturally the courts will not tolerate a vacuum in relation to this; they will make their own rules.
It is a fair comment by Deputy Taylor that the wording of the Bill as proposed is somewhat tortuous. It leaves too many questions unanswered and it is undesirable that these questions would be left unanswered. The electorate are entitled to know with reasonable clarity what legislation this House is passing. That is a principle to which I adhere at all times while, at the same time, recognising that a degree of flexibility should be given to the courts. I am quite satisfied that the Minister's amending proposals in relation to section 3 (1) and the sub-paragraphs contained in it provide a requisite degree of certainty and, at the same time, the flexibility which will deliver justice in any case that can be reasonably anticipated.
I warn against getting caught up in a debate in this House about the legal niceties of separation on a non-irretrievable breakdown basis and separation on the basis of proven irretrievable breakdown in all cases, as is proposed in the Bill. It is fair to say that there are technical reasons why irretrievable breakdown would not be inserted as a mandatory requirement for a separation. These technical reasons relate to the historical development of the concept of judicial separation as opposed to divorce.
If we look at the practical reasons why people in Britain look for a separation rather than a divorce, we will find that there are real humanitarian considerations involved. They are not concerned about the legal technicalities but about the emotional, philosophical and religious aspects of going into court and saying, as people do have to say in Britain, that their marriage has irretrievably broken down. There are many people in Britain, where the two options are freely available and where the separation code remains true to its historical antecedents and does not require the declaration of irretrievable breakdown, who opt for separation precisely because they do not want to say that their marriage has irretrievably broken down. Some of them will go further and say that they have philosophical or religious objections to divorce.
Sometimes prisoners' wives and prisoners' husbands opt for separation because they do not want to say that they have put an end to the marriage. Considerations of loyalty to a person who is incarcerated very often dictate to ordinary people who are not particularly well equipped to decide the legal or philosophical niceties. They make a practical decision that they want to stay loyal to their spouse while incarcerated and, at the same time, make practical provision by obtaining a separation decree.
I know I have taken a very dramatic example of circumstances in which people would opt for a separation rather than a divorce but we should consider the ordinary people who go to court and their attitude to making a declaration, like putting a badge on, before they go into court to get the very sensible release that can be obtained under a separation decree, and wear this badge of irretrievable breakdown as a qualification for getting any other release.
On Second Stage of this Bill I said that there would be a great demand, as a result of the many excellent provisions in the Bill, in relation to property, custody, access and all the various family law matters. I expressed that in the context of my concern that there might be a big rush into the courts and that they would get clogged up. I must mention it now in the context of that demand affecting many people who, like the prisoners' wives in Britain, for their own reasons might not wish finally to avail of the other release in relation to property and so on because they do not want to say that their marriage has irretrievably broken down. They will see this as an obstacle to their availing of the excellent reliefs contained in the Bill whether it emerges as proposed by Deputy Shatter or is amended by this House. For that reason I am more than anxious at this stage that Deputy Shatter would not insist on imposing this requirement of wearing the badge of irretrievable breakdown in all cases to avail of the excellent reliefs that will emerge, no doubt, in other respects in this Bill. If Deputy Shatter took this approach it would eliminate much of the controversy that has arisen in relation to this Bill, possibly would satisfy the general public demand for legislation in this area and perhaps make our discussions more relevant among the public to the general situation which requires to be addressed.
I will put on record that I prefer the Minister's approach in relation to the requirement that the courts would take it on themselves of their own motion to consider the welfare of children. Deputy Colley's point about the Minister's proposals being unconstitutional is certainly not well founded because the Constitution provides that the family is paramount. The interests of the family are paramount, not the interest of the individuals, be it the parents or whoever in the family. Cases have been decided at a high level by the courts which asserted the concern of the courts through the constitutional provisions that the interests of the whole family would be taken into consideration when dealing with family matters.
In conclusion, I support the Minister's amendment and commend it to the House.
A number of people spoke in this debate this afternoon on the question of reality and then went into very long, detailed, technical and sometimes very isolating factors about this Bill. Again and again I was reminded that this legislation is about helping people in relationships and at times of emotional upset when they are at their most vulnerable. This is when they need support most and that, I believe, is what all Members of the House would like to achieve for them. Therefore, I found it bewildering that the other side of the House could find such difficulty with the concept of irretrievable breakdown of marriage and the way it is phrased in the Bill, "that 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." At times I was almost led to believe that people would go into court without their marriages having irretrievably broken down because it was the fashion of the season, that they would have carte blanche, as was mentioned, because in some way they would decide it was a trendy thing to do. We must underscore again and again in all the legislation and, I hope, all the support services to implement this legislation, that people who reach the stage of going into court to seek a judicial separation have gone through all the stages of trying to hold a relationship, a marriage, a unit, together. The Bill demands that efforts at reconciliation and conciliation be tried.
The ethos, the Constitution, the emphasis on the family in this country are totally alien to anybody going into court to get a judicial separation if their marriage has not irretrievably broken down. I agree with Deputy O'Donoghue's statement that we should deal with this in a caring and sympathetic way. We are bringing this legislation before the House two and a half years after June 1986 when, before the referendum on divorce took place, everybody pledged that there was a tremendous need, an urgent necessity for protective, supportive legislation to allow people to have a legal solution to the ending of their marriages. At that time we were told again and again that divorce was not necessary, that this type of legislation would be forthcoming anyway and that people would be dealt with in the most sympathetic, caring and supportive way.
I agree with other Members of this House that this has nothing to do with divorce at this stage. The proposal in that referendum was defeated, we have accepted in a democratic way that that was so and now we have gone on, late I may say, to try to bring in legislation that will help couples experiencing marriage breakdown who do not have recourse or options such as those mentioned by Deputy Abbott as applying in Britain. They do not have options that they will consider philosophically, theologically or in any other way. They have the court and judicial separation, and the more supportive and flexible we can make that within the total understanding and acceptance that people do not lightly and unreasonably go into court for the dissolution of their marriage the better. We must put an end to any sense of insult to people who find themselves in bad marriages which they have tried to hold together. That is the recognition and acknowledgement we must give to them.
People who have happy marriages, who have held together, who have been lucky and fortunate enough to have chosen spouses with whom they can continue to live should feel privileged enough to give every help, support, sympathy and care to those who have not had a similar privilege. That is what the irretrievable breakdown concept is all about. It is no accident or coincidence that all those working in this area who made submissions orally or even by letter to the Oireachtas Joint Committee on Marriage Breakdown agreed with the concept of irretrievable breakdown. On Committee Stage of the Judicial Separation and Family Law Reform Bill Deputy Shatter said that in 1975 the Episcopal Council for Social Welfare, a committee of the Catholic Bishop's Conference, in a statement on family law recommended irretrievable breakdown as the basis for granting decrees of separation.
Not as a precondition.
As this issue has been debated at length the response I have heard is of total support for the introduction of the concept of irretrievable breakdown so as to be rid of the aggressive, antagonistic adversarial system.
Deputy Taylor said that logically and practically the adversarial system cannot be totally removed in any court separation but we can arouse less antagonism and alienation. In the context of relationships, we should be attempting to achieve the least damaging situation, not just for the parents but for the children.
Deputy Abbott said that many would consider it a stigma if irretrievable breakdown were the reason for the collapse of a marriage. I know a lot of women in Irish society who see it as a stigma of shame that they have been battered, deserted, violated, unmaintained, a much more shameful and embarrassing stigma than facing up to irretrievable breakdown of marriage would be.
Why do we not accept what everybody, the people involved in marriage breakdown and the people who deal with them on a daily basis, accepts, the concept of irretrievable breakdown? Until we bring in a more inquisitorial, more humane way of dealing particularly with emotional problems like this, we should at least use this concept. It is not an alien concept or a concept tinged with some dreadful threat of divorce. It is a humane, decent, acceptable, legal way of dealing with marriage breakdown.
In regard to the welfare of children being paramount, I know of no couple who have gone through marriage breakdown whose first thoughts and whose first anxieties have not been about what happens to the children and how they can protect the children from their particular trauma. It is not fair or right for us to allege that parents going through marriage breakdown would in some way disregard the feelings and emotions of their children so as to abuse them. I believe, it is written into the Bill, and other Members who are practising lawyers have said, that we have a good case law that shows that children are and can be protected and we do not have to write it in. It is not alone redundant but actually insulting that, once again, legislators actually have no confidence in parents, in the courts and in the Judiciary.
If we do not accept the concept of irretrievable breakdown as a humane, caring and supportive way to help people to cope with judicial separation on marriage breakdown we are not reflecting what people feel and think and have recommended to us. That is what we have to do. We always rely on interest groups with experience to tell us how legislation will, in a practical sense, affect them. We have been told that, as have the Oireachtas Joint Committee on Marriage Breakdown. We must reflect on that. In addition, we must trust our other institutions of State. We should be listening and learning from people outside this House who know the realities of what we are legislating to cover. These institutions should not only be listened to but should be given due regard as the people who will have to interpret and implement the legislation. I would not like to think that we, the legislators, would claim to have all wisdom. I would be horrified, if not a little terrified, if I thought that was the claim we were making.
I find it extraordinary that there is tremendous doubt as to whether we would be able to trust the judges, if irretrievable breakdown became one of the concepts under which a judicial separation could be sought in court. Judges are trained to interpret the law, to set precedents, and have proved extraordinarily capable. There may have been times when we have not agreed with their judgments, but that does not take from the trust and confidence we have in judges or from our respect for them and their independence and their ability to interpret the laws which pass through these two Houses.
Therefore, I do not see how it would be at all difficult for the courts and judges to deal with couples who come before them who do not wish to go ahead on the basis that one partner has been totally to blame for the breakdown of the marriage and who use that as a means to come to some financial and economic arrangement. Is it not much more civilised and much more honest, in a partnership as close and as interdependent as marriage, to be able to admit and say that the fault did not lie on one side only and that the relationship failed through actions on both sides? If one spouse wishes to go in and allege and prove adultery, that is allowed for under the Bill but a couple to whom adultery, desertion, violence or battery do not apply should not have to choose one of those grounds for seeking judicial separation.
I think it was Deputy Abbott who asked if we could give an example of one situation out there in the world to explain why we feel like this. Deputy O'Donoghue said that the Minister's amendments allowed as much flexibility to couples as they needed. He pointed out that a couple living apart could, with consent, seek a judicial separation after one year and, without consent, after three years but there are many couples, mostly for economic reasons, particularly in the case of the wife, who have not got the means to move out of the house and who, if they had to wait for three years, would be left in a situation where they and their children would be sharing the same house in conflict and with tension. There may be no overt violence and no adultery, but there could be a war of attrition going on. There may be a climate of tension and we know from researchers and psychologists that that is more damaging to children than if there was a separation and the children were living in a stable relationship with one parent. I accept that all Members are concerned about the rights of the children and the need to protect them and for those reasons we must consider this issue carefully.
This is not being done in a vacuum and it is not being done without us having a lot of evidence of what is involved. We have all learned a lot from participation on the Joint Committee on Marriage Breakdown, from the sad cases we have to deal with daily and from the reports of court proceedings. All couples who seek a judicial separation recognise that there has been an irretrievable breakdown of their marriage and we should allow them to separate with dignity and show a care for the children. There is a greater chance of couples settling the issue out of court without blacking one another's character and having a civilised and caring relationship in regard to their children if they do not have to go through a severe adversarial system. Surely that is what this is all about? Finally, applicants do not go before the courts for a judicial separation or judges waste their time considering such cases, if they are all not satisfied that the marriage has broken down. Judges do not examine such cases to ascertain if they are happy marriages. Sadly, the issue has gone beyond that when such applications are made to the court.
In relation to my amendment I should like to state that I am amazed at the hope expressed by Members that I would not rerun my amendments on Report Stage. Those who say that ignore certain facts and, in this case, ignore the procedures of the House. Standing Orders are framed so as to permit amendments which have been rejected in special committee to be brought again before the full House on Report Stage. For obvious reasons that is not of course the case in relation to amendments which have been rejected by a committee of the full Dáil. The main amendments I am proposing are the same as those which I proposed in the special committee and warrant in my view the consideration of the full Dáil at this stage. They are aimed not at a diminution of the Bill but its improvement bearing in mind those estranged spouses who will avail themselves of its provisions and the judges and lawyers who will have to operate those provisions.
We have a duty and a responsibility as legislators, no more and no less, to see that any laws which are passed in this House are the best possible that we can provide. I consider what I have said has to be said in defence of the procedures of the House and the status of my amendments under those procedures at present. There is no need for me to go over the ground again. It is sufficient for me to say that the use of irretrievable breakdown in the context of judicial separation is plainly wrong. It has been seen to be so in other jurisdictions. Deputy Shatter's party, when in Government, also rejected the use of the concept in separation proceedings and no amount of verbiage is going to cloud the fact that it is only appropriate in the context of divorce when a marriage is brought to an end.
In addition, to say that irretrievable breakdown should be the one overall ground for judicial separation when there are certain facts in relation to actual grounds for a decree which are required to be proved is, in my view, nothing more than to engage in pretence. The so-called family circumstances ground for a decree is clearly objectionable. Again, that was the view of the previous Government and it can justifiably be asked why bother with the other five grounds when this ground is in the Bill. My amendment will provide for the case where all the usual interaction of matrimonial co-habitation has come to and end, that is where spouses while still living under the one roof are in fact living separate lives.
In regard to the position of children, I make no apology for the fact that on this side of the House we are seeking to have their welfare afforded the highest priority in separation proceedings. That is why I am proposing that the court examine the position of the children, whether the spouses wish it or not.
I should now like to deal with some specific points made during the debate on my amendment. Deputy Shatter made great play about my references to a recent discussion paper from the Scottish Law Commission on their divorce law which is similar to that in England and Northern Ireland. I only mentioned the discussion paper because in regard to the grounds for a decree of judicial separation Deputy Shatter's Bill is a copy of English divorce legislation. The point made by the Scottish Law Commission is of direct relevance to Deputy Shatter's proposals in sections 2 and 3 of the Bill. Deputy Shatter is proposing irretrievable breakdown as an overall ground for judicial separation and the Scottish Law Reform Commission were commenting on that concept in the case of divorce where it is in fact more appropriate. They said that irretrievable breakdown as a ground was a pretence, that in reality there were in the Scottish case five grounds. I am trying to remove the self-same pretence from the Bill and that is a matter Deputy Taylor alluded to in the special committee.
Deputy Shatter said that in my opening speech on my amendment No. 1 I said that I was following the Law Reform Commission. I did not say that. What I did say was that my proposals were in certain respects closer to those of the Oireachtas joint committee and those of the Law Reform Commission. Neither the Law Reform Commission nor the Oireachtas joint committee recommended that in addition to proving any one of a number of facts there would also be a need to prove irretrievable breakdown. In that respect my proposals are closer to those of the Oireachtas Joint Committee and of the Law Reform Commission.
Deputy Shatter said that a decree would be granted on the one ground that the marriage had broken down, not mentioning the fact or facts on which it was granted. This it seems is the kernel of his argument in favour of having irretrievable breakdown as the one overall ground but he has no evidence at all to back his claim that the court will not mention the fact or facts on which it grants a decree. It does not happen in the UK which has a similar provision to that being proposed by Deputy Shatter in its divorce legislation and neither does it happen here at present when a court is granting a decree of divorce a mensa et thoro.
Deputy Colley is of the view that if section 3 (1) (f) is taken out of the Bill spouses may be denied the chance to seek a decree of judicial separation. That is a misleading statement to make. The fact is that under my amendments, as I have said on a number of occasions, section 3 (1) (f) will be comprehensive to the extent that it would cover spouses who are already living separate lives under the one roof and wish to seek a judicial separation. The irony is that according to the explanatory memorandum which accompanied the Bill, this was what was purported to be covered by section 3 (1) (f) from which I quote:
... there are many couples whose marriages have completely broken down who are still residing under the one roof although leading separate lives.
However, as I have said again and again section 3 (1) (f) goes much too far and makes all the other grounds in the Bill redundant.
Deputy McCartan spoke in favour of section 3 (1) (f) and felt it was wrong to condemn it because it was so wide. Again, I should like to say to the Deputy that it is not only this Government which has opposed section 3 (1) (f) but the previous Government also opposed it for the very same reason because it was so vague. Section 3 (1) (f), as I have repeatedly said, makes the remaining grounds in the Bill redundant.
Deputy Flanagan asked whether I thought sections 2 and 3 were too narrow or too broad. I can answer that question quite simply. I am in favour of a decree of judicial separation being granted on proof of any one of the grounds at section 3 (1) (a) to (e) of the Bill. I reject section 3 (1) (f) for the same reason which Deputy Flanagan's own party rejected it when they were in Government, because it was unduly vague; in other words, it was too broad. However, I am trying to replace it with a more appropriate provision which I have already explained.
Deputy Barnes spoke about irretrievable breakdown taking some of the adversarial context out of judicial separation proceedings. That argument is unsustainable when a number of facts, all of which accept the fact that separation involves questions of fault, must be proved. It is only the ground of separation, whether by consent or otherwise, that will create a "no fault" situation. I am providing for the inclusion of that ground in my amendment. Incidentally, Deputy Barnes who was in favour of irretrievable breakdown as a ground for judicial separation omitted to mention that her own party, when in Government, opposed irretrievable breakdown as an overall ground for judicial separation.
I do not always agree with my own party.
Deputy Shatter is also on the record as saying that "if the Minister is successful in persuading the Dáil to change the Bill's provisions for the granting of separation decrees, estranged spouses still living under the one roof who recognise that this marriage has totally collapsed but who cannot agree on a basis for separating, will be deprived of the possibility of obtaining a judicial separation where neither can prove the other guilty of a matrimonial offence such as cruelty or adultery". All I want to say in a straightforward way is that this statement totally misrepresents my amendment and I am sure Deputy Shatter understands that that is a total misrepresentation of my amendment. He must know full well that my amendment provides for the precise case he has mentioned.
As a result of subsection (3) (a) of my amendment, spouses would not be regarded as living with each other in the same household where there is no sharing of lives between them or, to use Deputy Shatter's words, where they are estranged and the marriage has totally collapsed even though they are living under the one roof. In other words, there is a factual separation and the spouses, under my amendment, will be able to apply to a court for a judicial separation on the ground of separation even though they are living under the one roof.
Deputy Shatter, for obvious reasons, has chosen to ignore the provision in my amendment. He said that I had failed to mention the position of the spouses in question. This is a total distortion. I have made it plain on every occasion on which I have addressed this matter that I believe that spouses in the position described by the Deputy should be catered for by this legislation. My amendment caters for the precise case where the marriage relationship has broken down totally but the spouses are still under one roof.
Deputy Shatter and other Deputies also referred to the position of children. He said that the Bill ensures that the welfare of the child will remain the first and paramount consideration. However, that will only be the case under the Bill if one of the spouses chooses to raise the position of the children. I want to ensure that the position of the children will be the first and paramount consideration, whether the parents wish it or not. My amendment is designed to ensure just that.
Amendment put.
The Dáil divided: Tá, 72; Níl, 70.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Browne, John.
- Byrne, Hugh.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- O'Leary, John.
- Power, Paddy.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Joe.
- Walsh, Seán.
- Woods, Michael.
- Wright, G.V.
Níl
- Barnes, Monica.
- Barry, Peter.
- Begley, Michael.
- Bell, Michael.
- Birmingham, George.
- Blaney, Neil Terence.
- Boland, John.
- Boylan, Andrew.
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Clohessy, Peadar.
- Colley, Anne.
- Connaughton, Paul.
- Cooney, Patrick Mark.
- Cosgrave, Michael Joe.
- Crowley, Frank.
- Cullen, Martin.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Desmond, Barry.
- Doyle, Avril.
- Durkan, Bernard.
- Enright, Thomas.
- Farrelly, John V.
- FitzGerald, Garret.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Gibbons, Martin Patrick.
- Harney, Mary.
- Harte, Paddy.
- Hegarty, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Hussey, Gemma.
- Keating, Michael.
- Kennedy, Geraldine.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCoy, John S.
- McDowell, Michael
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Molloy, Robert.
- Naughten, Liam.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Quinn, Ruairí.
- Shatter, Alan.
- Sheehan, P.J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Wyse, Pearse.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and D. Ahern; Níl, Deputies J. Higgins and Boylan.
Amendment declared carried.
Since amendment No. 1 is passed, amendment No. 2 cannot be moved.
We now proceed to deal with amendment No. 3 in the name of the Minister for Justice. Amendment No. 3 was discussed with amendment No. 1. If amendment No. 3 is agreed, amendments Nos. 4 to 8, inclusive, cannot be moved.
I move amendment No. 3:
In page 4, to delete lines 26 to 33 and in page 5, to delete lines 1 to 35.
Amendment agreed to.
Amendments Nos. 4 to 10, inclusive, not moved.
We now come to deal with amendment No. 11. If amendment No. 11 is agreed to, amendments Nos. 12, 13 and 14 which have already been discussed with amendment No. 1 cannot be moved.
I move amendment No. 11:
In page 5, to delete line 53, and in page 6, to delete lines 1 to 8.
This is purely a technical amendment. Amendment No. 1 has in effect transferred subsection (3) of section 4 to the new section 2 of the Bill. This amendment provides for the formal deletion of subsection (3) from section 4.
Amendment agreed to.
Amendments Nos. 12 to 14, inclusive, not moved.
I move amendment No. 15:
In page 7, to delete lines 8 to 21.
This amendment seeks to delete section 7 of the Bill without replacement. Subsection (1) proposes, for the first time, a bar on applications for a decree of judicial separation within one year of marriage. At present there is no such law as respects applications under the existing grounds of adultery, crueltry and unnatural practices. A similar bar applies to divorce proceedings in England but not, significantly, in the case of separation proceedings.
The bar now being provided for is inappropriate. It has been defended on the basis that it will prevent spouses from rushing into court for a separation decree. In effect the argument is that where a spouse has committed adultery or his or her behaviour has been unreasonable, which concept also includes cruelty and so on, the other spouse should wait until one year of marriage is completed before applying to the court for a separation decree. The one year bar provided for in subsection (1) is meaningless in the context of the other grounds of desertion or separation because a period of desertion or separation of at least one year is already prescribed in those cases. I do not see how in the circumstances where adultery has occurred or where there has been cruelty one can justify a one year bar on applying for a judicial separation.
I am also opposed to the change in view of the side effects of the provision, particularly those arising out of subsection (2) of section 7. Subsection (2) provides that in exceptional circumstances the spouses could apply for a separation within one year of marriage. This provision is also based on divorce legislation in England but it proved to be so unsatisfactory that it was dropped in 1984. The experience of that provision was that applicants were inevitably advised by their lawyers to set out in detail all the facts, however unpleasant, which could possibly constitute marriage difficulties of a serious and exceptional nature. This caused bitterness, distress and humiliation. Some spouses were led to exaggerate allegations with the result that any hope of the parties reaching a settlement was jeopardised.
In the light of this what is the point in retaining this section of the Bill? In any event there are already adequate safeguards in the Bill by which the parties can avail of counselling or mediation if they wish. The provision is not only unnecessary but would inevitably increase the adversarial element of separation proceedings, something that the Bill purports to seek to avoid.
There is great curiosity about what the Minister is now attempting to do in the context of what was said in regard to amendment No. 1 which has been accepted by the House. When criticising the grounds for divorce a mensa et thoro, or judicial separation as we will now call it, the Minister said with reference to the concept outlined in section 3 (1) (f) that it was too vague while other Members said it was too broad and the suggestion was that it was liberalising the law in a way that would allow anyone and everyone obtain decrees of separation regardless of marital circumstances. We of course said that that would not be the case, that what we are concerned about is allowing couples whose marriages run into difficulties to obtain decrees of separation without having to make allegations about matrimonial misbehaviour and with allowing the courts to investigate the relationship to ascertain whether the marriage is still viable or whether it has broken down. This Bill was designed not merely to provide mechanisms to facilitate couples obtain judicial separations when marriages break down but also provisions to facilitate reconciliation where possible.
It would be generally accepted outside of this House that if a young couple marry and if within the first few weeks of marriage the marriage runs into difficulties, generally speaking they should seek other assistance to resolve their difficulties through counselling or other help without, within weeks or months of marriage, rushing into court to look for a decree of separation. Section 7 of the Bill which the Minister is now proposing to delete is designed to encourage couples to avail of counselling services and any other help they may require if during the early weeks or months of their marriage they run into marital difficulties. I find it extremely surprising that the Minister should be opposed to such a provision which is designed to ensure that the advice given to someone whose marriage has within the early weeks, run into difficulties and who goes to see a lawyer to get legal advice, is that during the first year of their marriage they cannot go to court to obtain a decree of separation. It is, however, designed to ensure that where there are exceptional reasons, for example, where there has been serious violence in the relationship, that court proceedings, if necessary, can be brought during that 12 month period.
There is specific provision which allows a court application to be made where there have been marital difficulties of a serious and exceptional nature. I find it very difficult to understand why the Minister should want to delete this provision from the Bill. It is designed to encourage couples to get help other than legal or court help when their marriage runs into difficulties during the early days of the marriage. In effect what the Minister is saying is that if there is a single incident in the first few weeks or months of marriage that incident should be able to form the basis for a young wife or husband to rush into our courts. Rather than the Minister opposing the provisions in section 7, I would have expected that he would have welcomed the provisions. I would have expected if that section was not in this Bill that we would have heard from the other side of the House that this Bill was encouraging people, in the first few weeks of marriage, to go to court if they ran into marital difficulties. It is a sort of Catch 22 situation because as we have gone through the Bill we have discovered that the Minister will pick holes in particular aspects of the Bill but the holes he picks are not necessarily either logically or philosophically consistent with holes he may pick in it later on.
I have no doubt that if section 7 was not in the Bill the Minister would be criticising the Bill on the basis that it allowed people in the first few weeks of marriage to bring their relationship to an end by getting separation decrees. However, because it is there the Minister wants to have it taken out. I ask him to reconsider the approach he has adopted to this section. If he is serious in believing that when marriage difficulties occur that couples should be given some space and time to consider what action they should take as regards the difficulties they are experiencing, it would seem to me that this section is designed to give the necessary time and breathing space to a young couple who experience difficulties during the first few months of marriage. This section, of course, knits in with the other provisions in the Bill which are designed to ensure that lawyers give advice to husbands or wives who seek legal help to encourage them to seek counselling in the early stages of a marriage running into difficulties.
This section forms part of an overall pattern in the Bill. It is part of the provisions in the Bill which are designed to encourage and facilitate reconciliation as opposed to being part of the structure of the Bill which provides for the granting of separation decrees when relationships have ceased entirely to be viable and a marriage has completely broken down. As I said, it is a matter of some astonishment that the Minister should seek to have this provision taken out of the Bill. I am sorry that yet again, in dealing with an aspect of this legislation, the Minister should refer to this in a disparaging way on the basis that ipso facto it is something found in divorce legislation in other countries and should not be included in a Bill relating to judicial separation. I say in response to the Minister that this is something which is found in marital legislation in most other countries so as to ensure that in the early weeks of a marriage a couple who have marital difficulties do not resort to litigation. The fact that other countries have it in divorce legislation rather than in separation legislation is purely part of the accident that most other countries deal with marital breakdown in the context of divorce legislation whereas in this country and within this jurisdiction we deal with marital breakdown in the context of judicial separation legislation.
I do not think there is a great deal more to be said about this provision. I would simply urge on the Minister that he would reconsider the approach he is taking and that, in the interests of ensuring that couples do not needlessly head into courts to seek separation decrees within the first few weeks of a marriage when difficulties occur, he would consider withdrawing his proposal to have this section removed from the Bill.
I want to reiterate what I said about this section on Committee Stage. It is a most valuable section and I think this would be recognised by those who work in the area of marital law and also by those who work as counsellors and mediators. When there is a marriage breakdown, I think it would be recognised that it is unrealistic of couples who encounter difficulties in the first few weeks or months of their marriage to assume that that is the pattern which is going to be followed continuously in their marriage and that there is no point in continuing the marriage. This is an admirable section in that it sets out to protect marriages. Surely the basis of our efforts here is to protect those marriages which can be protected and to allow those people who cannot continue with their marriages, or who find it very difficult to do so, some dignity and some room to manoeuvre legally.
I do not think there is any doubt in the minds of people who deal with people who are newly married that the first year of marriage is a very difficult period. There is absolutely no doubt about that and the statistics of marriages which break down show that uncontrovertibly. A much higher percentage of marriages break down in the first year of marriage than is the case with marriages which last longer. It is not that couples break up in the first year. They encounter troubles in the first year and if there is no encouragement of these couples to look for help or to go for counselling or other kinds of help then it seems that we are inviting couples to obtain separations, which I have no doubt many of them would regret obtaining some time later. Many of these couples could perhaps be young — another area which we have not dealt with but which badly needs to be dealt with is the age of marriage — and given that a fair proportion of people get married quite young, and certainly in their early twenties, that is a totally new experience for them and they will only have allowed themselves a few months together, I think it is reasonable to expect that they cannot rush headlong into separation. We should not make it easy for them to do so while at the same time encourage them to obtain counselling or to get other professional help.
Section 7 does not totally deny the right of couples who are having difficulties to apply for a separation. I believe that is right. However, some exceptions to the rules are left in the section so that it is not a total bar. I know that the argument was made on Committee Stage that what this section may do is to impose further costs on the couples who really want to seek a separation order. While that may be the case, there is a price to be paid for effectively protecting a marriage in the first year of its life. It is recognised — and I am repeating this because I think it is worth repeating — that it is a very difficult time for couples; it is a time of adjustment and a time when they need help to stay together rather then help to move apart.
The point has been made by the Minister both here and on Committee Stage that what this section will do is to condemn couples who, for instance, are experiencing the kind of difficulties which follow from adultery and other problems to stay together no matter what. I want to say to the Minister that in real life there is an episode of adultery or something akin to that in many marriages. Problems arise which are extremely serious for many people and they do not continue with their marriage. However, many people continue with their marriage.
Why is the Minister saying they must be allowed to rush into an application for separation before they have had time to consider the matter? It is reasonable to suppose that any couple who begin to experience difficulties within weeks or months of their marriage will take the best part of a year before coming to the point of decision about what route they wish to follow, whether it be separation or some other route. It is a reasonable period during which the couples can reflect.
I appeal to the Minister to consider the arguments put forward from the vantage point of protecting marriages and to allow that period, which is not excessive. by the time many couples come to the point of realisation about the seriousness of their difficulties, it will be the best part of a year, anyway. The inherent judgment behind this section is that it is far better for conciliation, or mediation, or counselling to take place rather than that the machinery of the system of justice roll into action and be almost unstoppable once it has begun. We owe it to people who are inexperienced in marriage to allow them that period of reflection.
I reiterate briefly the points I made on this Government amendment on Committee Stage. It is puzzling to see this amendment presented. If I had any fault with the section I might have thought that perhaps one year was too short a period and that one might have considered a slightly longer period. I do not understand the thrust of what the Minister is trying to achieve here. Presumably there should be some purpose to the amendment. I am trying to figure out what it could possibly be.
First, we have to see what this section does not say. It does not say that people who have been married for less than one year may not separate; they can separate if they want to. It does not even say that people who have been married for less than one year may not enter into a separation agreement; they can do that too, if they so wish. All it says is that within the period of a year they may not take the very serious step of issuing a writ, of going to law. That is a very different matter. When you bring the continuation of the marriage into the legal ambit, you are putting the whole question of that marriage on a different level altogether from the wife going back to her mother for a short while because of difficulties, or a period of incompatibility, or whatever. At this stage you are going to a solicitor, getting counsel, all at great expense, assuming that you can afford that — and I shall be talking about that later. You are setting in train a much longer lasting, more permanent procedure involving perhaps division of property, succession rights, all sorts of things. That is major activity.
All the section says is that they may not do that within one year of the marriage. What possible harm can it do to say that you may not go to law about the marriage until one year from the date the marriage has expired? Where can the damage be in saying that? I can see some good coming out of it, although perhaps not a great deal because I do not think this would arise in very many cases within a year, anyway. When people get married young, are immature and may not have settled within a period of a year, the fact that they cannot have the finality of legal proceedings to separate them is a cautionary factor that would induce them to try harder to make a go of their marriage.
As a solicitor practising law, I visualise that a spouse could come to me saying that she was married three months ago and wanted me to issue a writ on her behalf for judicial separation because the marriage had broken down. I would not wish to take instructions in such a case. I would like to be able to tell that person that the law does not allow her to do that, that it is far too soon to think of issuing a writ to have a permanent order made to separate her from her spouse, to sell off the family home, pay off the mortgage, divide the proceeds and set in train a whole permanent set of matters. I would like to be able to tell that spouse to go to the mediators who perhaps could resolve the difficulties. That would take some months and in the meantime her whole attitude might change completely and she might see things in a completely different light. At least nothing irrevocable would have been done in the meantime, no steps would have been taken in the way of property and all the ancillary orders that could arise within that period.
I do not understand what is the problem. This seems to be an eminently sensible provision that certainly cannot do any harm and might just do some some good. Why not leave it there so that people would know that there is that small degree of discipline — and it is only a small degree — that when they enter their marriage they know that at least for one year the question of going to court about the marriage to get permanent orders made will not arise. That discipline might just save some marriages, and if it saved even one it would be well worth while having it in the Bill.
There was certain merit in what Deputy Shatter proposes here but with the elimination of section 3 (1) (f) the need for this section has gone. The grounds on which one many now seek a judicial separation are very serious grounds. I would be concerned that perhaps a wife would have to sustain beating or mistreatment and would not have the right, if this provision stays, to apply for a decree of judicial separation. She should have that right and the Legislature should ensure, in so far as it can, that she does have that right. It has been the experience in other jurisdictions where similar provisions to subsection (2) of this section apply that the parties to the marriage get involved in recrimination. What happens is that one or both of the parties start making accusations against the other and this causes bitterness, distress and humiliation. I do not believe that this provision in any way assists the situation and in so far as this House can stop name-calling, accusations or bitterness during the course of the proceedings I believe the House should ensure that it does so.
Experience has shown that where one party has to prove that the difficulties are of such a serious and exceptional nature that it would warrant a decree, the hearing of the decree has been all the more bitter and recriminatory. I believe that including this provision would merely exacerbate and heighten tensions within the entire procedure. Accordingly, I support the Minister's amendment.
I spoke on this section on Committee Stage and again I will speak very briefly on it. I can appreciate what Deputy Shatter intended when he put this provision into the Bill, however, I feel it could lead to circumstances where couples who are in difficulties after a month or two would have a very hard decision to make whether their case came under subsection (2) — serious and exceptional circumstances — and would have to seek advice from their solicitor in this regard. The solicitor might say that in his opinion the circumstances were not serious and exceptional, while they might feel they were. They would then have to decide whether to proceed and possibly they might be refused an application under subsection (2), which would then lead them back to square one. Rather than trammelling the procedure by this section, it is probably better to leave it out altogether. For that reason I agree with the Minister.
This amendment is an exact repetition of what was proposed on Committee Stage. It baffles me now as it did then. It is some months, 1 June 1988, since we had the opportunity to debate the legislation in the special committee, and anything that was said then or since baffles me as to where Fianna Fáil are going in this legislation. All kinds of conspiracies and motives come to mind — many of which I hope are not true and will not come to pass when this Bill leaves the House — as to where the legislation is going.
The grounds on which the Minister and his supporters seek to challenge this section are, as I understand it, threefold: First, they oppose it on the basis that it attempts to restrict the operation of the scheme intended and included in the Bill; second, it is suggested that the delay of one year is a concept more appropriate to legislation dealing with divorce; and finally there is the omnibus reservations that the section is unnecessary in the operation of the law. In trying to deal with each of these points, it is important to understand why the section is in the Bill and what it hopes to achieve. We have moved an amendment to sections 5 and 6 on Report Stage and therefore it is necessary to refer to that.
The legislation is seeking to extend and expand upon the very narrow grounds upon which parties to an otherwise valid and subsisting marriage are entitled to go to court to seek a judicial separation. Prior to this it was grounded on cruelty and desertion. By reason of accepting the Minister's first amendment, we have laid down a series of further grounds. We are seeking to make judicial separation more easily obtainable and to liberalise the law. In order to ensure public support and acceptance of the legislation, a unique scheme was built into it which is encompassed in sections 5 and 6 of the Bill. I previously described this as revoluntionary in the development of law in any sphere because it places on the shoulders of practising lawyers positive duties to their respective clients — to the applicant and, by virtue of an amendment agreed on Committee at the behest of the Labour Party, to the respondent. At the point of or prior to the initiation of proceedings, the parties to the proceedings are made fully aware of the prospects of reconciliation, the importance of the position of marriage and the contract between the parties. They are also made aware of the non-desirability, in the interests of the common good, that marriages be lightly done down and that there are solemn dimensions to the contract. They are also made aware of the reconciliation and other facilities provided by the community either directly or indirectly through the courts to try to make good the differences that have brought the parties to that stage.
The legislation has on the one hand the objective to liberalise the law on the grounds that people who believe their marriages have broken down can seek help from the courts, and on the other, ensuring that it is in only the most extreme instances where all other avenues and alternatives have been exposed that a court can ultimately make an order. If one approaches the legislation from that perspective, one then comes to understand fully why section 7 is there. The section recognises what I would have thought to be a readily acceptable fact, that the first year of marriage can prove to be the most traumatic. This is a time when the greatest number of questions, many of them completely unanticipated, will have to be dealt with by the couple and they might simply not have adequate experience. They could well avail themselves or be forced to avail themselves of a breathing space and to have a second, third or if necessary a fourth look at their problems which would give them an opportunity to give the marriage a chance. Section 7 is there for that reason. The section is conservative in its intent and is a counterbalance to the liberalisation in the earlier sections. It certainly stands very well in the scheme of liberalisation with the revolutionary inclusion of the necessity to have recourse to reconciliation advice from lawyers and this breathing space under section 7. That is why it is there. It is based on what I would have understood to have been a readily acceptable fact, namely, that the first year of marriage can often be the most traumatic for people with the least amount of experience and capacity to deal with such trauma. We are providing that rather than allow such people to have immediate recourse to the procedures, they should cope with their marriage by whatever means for at least 12 months. If at the end of that period they are still committed to the view that things are not working out, they can go to their lawyers and after advice on reconciliation they can go to the courts.
In the face of this conservative reasonableness, the Minister suggests that the provision is too restrictive. This is remarkable when one has regard to the fact that under our law people can marry at such an early age. They can be forced to marry by social, parental or church pressures in the most unsatisfactory and undersirable circumstances. The proverbial "shotgun" marriage is still prevalent. People are allowed to marry from the age of 16. It is remarkable that we should not seek to legislate for people of such immaturity who may have been forced to marry for immature or illogical reasons. If we allow them or force them to marry, let us have regard for what we have done and recognise that people in such circumstances will be presented with major problems which may seem to them to be utterly insurmountable and which can only be resolved by judicial separation. We have to be inconsistent. If we are to accommodate this kind of approach to the institution of marriage, we must be in a position to legislate that people who are allowed to enter marriage in such unreasonable circumstances are required to remain committed to it and address it as an institution, once embarked upon.
It has been suggested that this section is more appropriate to divorce law. This was a point made by the Minister of State on Committee Stage. Our legislation has nothing to do with divorce. We have ensured by referendum that divorce cannot, unfortunately, be introduced into our law. Consequently, we are legislating for the huge gap that exists in family law as a result. It is very unfair of the Government side, in commenting on this section and trying to dress up an argument as to why it should not be there, to try to taint the section and the whole Bill by constant references to divorce legislation.
One of my main concerns is that Fianna Fáil do not approach the legislation in the schematic way in which it has been drafted. The Bill is intended to adopt a balanced approach to reform. I voiced the view on Committee Stage that Fianna Fáil were trying to do down the legislation by simply throwing divorce muck and mud at it in the hope that it would stick and that the hounds of the right and "SPUCers" in the community would be howling in the letters pages, on the doorsteps of representatives' clinics and in the galleries and hallways of this House. It did not seem to work. I now see a possible alternative scenario. In their haphazard approach, Fianna Fáil are seeking to introduce an unsavoury element so that it will be an easier Bill to knock in its entirety when it leaves the Floor of this Chamber and moves to the Upper House or wherever. One wonders if the promoters of the Bill will ever succeed in getting the legislation to the Seanad.
If this provision is taken out the Bill will become less balanced. I believe it is a very sensible and useful provision. The Fianna Fáil group were worried about the omnibus section 3 (1) (f) on the basis that it was too wide but they are now attacking this section on the basis that it is too restrictive. On the one hand they want to tidy up and confine in precise terms the grounds on which a judicial separation can be obtained and they have succeeded in doing that in the vote they have just won. Here we have a provision which is acknowledged to be restrictive but which maintains a balance in the legislation. Fianna Fáil say it is too restrictive and should be taken out, that people who see difficulties in their marriage should be allowed within days to present themselves to lawyers and the courts declaring that they want to tear up their solemn contract and go their separate ways. The notion of marriage one day and separation the next smacks of the British gutter press. It is the type of scenario no reasonable person concerned with the preservation of marriage would be anxious to see.
I am surprised, given the remarks and approach of the Fianna Fáil group on the earlier section and the direction in which they were going, that they should now be turning around and suggesting that the legislation as proposed is too restrictive and should be made more easily available within days or weeks. I believe they are trying to do as much damage and harm to this Bill as they can and to set it up so that it will be more easily knocked. By taking out the subsection which required, in addition to the proof of the specific grounds that a court had to be satisfied that the situation was nonetheless still irretrievable, there is no doubt that yet again a safeguard which had been built into the legislation was being taken out without explanation thus setting up this legislation to be knocked by its inevitable detractors who are waiting on the sidelines to chew this to pieces once they get the opportunity.
Another point made in earlier contributions by the Fianna Fáil group dealt with the inconsistency on our side, as perceived by them, of the suggestion that we had argued that people do not lightly apply for judicial separation and that therefore one should not be worried to introduce a restriction or a time limit. If anybody talks about an inconsistent approach to this legislation, I must lay that charge squarely at the feet of the Fianna Fáil group.
I have illustrated as best I can that the thrust in the Bill is of a scheme which is unique in many respects, which has never been seen in family law, which has never even contemplated the counselling by lawyers before proceedings are issued, of reconciliation, of attempting to retrieve the difficulties in a marriage and so on. That is the consistent and balanced approach into which section 7 readily and comfortably fits. The Government side, having won the previous vote and got rid of section 3 (1) (f), have restricted the operation of the Bill to the very serious grounds where they feel the can take out this section. This is completely inconsistent. They have no idea why we have this legislation, where it is going or what it is attempting to achieve. Admittedly, the Government won the last vote but that cannot impact on the purpose of section 7.
I repeat that this section fits in remarkably well as a balance to the new provisions in this legislation and it is addressed particularly to the very realistic view everyone takes of marriage, that is, that the first year is the most difficult and that people should have the time to take a second or even a third look at their problems. In those circumstances I cannot fathom what the Fianna Fáil Party are doing, but I believe what they are doing is far more sinister than any of them would acknowledge. This will emerge when this legislation is debated elsewhere, if ever.
The Minister is well able to look after himself, but this business of us being a sinister organisation or having a sinister point of view on this section appears to be an unworthy attack on the democratic process. As legislators, surely we are entitled to make our views known? As I said, Fianna Fáil speakers can defend themselves.
What we are trying to do, and this must be recognised even by The Workers' Party who are so aligned to Deputy Shatter's Bill — it amazes and astonishes me that their philosophies should merge on this occasion — is to purify this legislation and perfect it. As I see it, the section is a piece of legislative sunburstery — the legal principle on the one hand and on the other. This is what makes money for lawyers. At present we are in the process of ensuring that lawyers should not make money that, the law is not seen as some sort of ogre, and that people in the hands of lawyers do not feel they are at the end of their time on this earth. Based on the plaintiff and the defendant principle, section 7 (1) says that no application for judicial separation shall be presented to a court for 12 months while section 7 (2) says you can, in exceptional circumstances, and section 7 (3) wraps the whole thing in legal absurdity.
I agree with the Minister. This must have given the draftsman nightmares trying to justify it while conforming to fairmindedness and the position Deputy Shatter took. I hope I am not doing the draftsman an injustice, but this legislation must have given him sleepless nights. I can imagine him throwing his hands up in the air and saying the only thing we can do is to delete this section. That is what we are doing. To impugn hostility, evil and unfairness to this side of the House is grotesque, and that is what Deputy McCartan is doing on behalf of his party.
I could not be here for the other contributions because I had to deal with problems outside the Chamber but I think they were fair. I wish the tenor and general standard of the debate had been maintained at the level attained in the committee. From the contributions made from the Opposition side, it appears that Fianna Fáil are the bad boys and girls, that we are the people who are doing down citizens who are suffering traumas as a result ot marital breakdowns, and at the end of this debate Fianna Fáil will probably be charged as having caused the breakdown.
I take the initial comments of the previous speaker on the future of the legal profession in good faith, and hope he addresses that subject at parliamentary party meetings——
He does.
——to the Minister for the Environment in particular in view of the pending building society legislation.
I am not being facetious when I ask the Minister to consider withdrawing his attempt to delete this section. I have listened to his comments and that of his party members, and failed to see how we are doing anything other than protecting the institution of marriage. I do not intend to go back over old ground with regard to referenda but the people spoke on those occasions and — rightly or wrongly — presented the view that they are interested in the protection of marriage. Section 7 (1) and (2) deal with the protection of marriage and the prevention of material breakdown.
Earlier in the debate and on Committee Stage it was said that the first year of marriage is an extended honeymoon where everything in the garden is rosy. I take issue with that in view of the fact that several reports came to the conclusion that the first year of marriage is the most traumatic for a newly married couple. That is not difficult to understand in so far as newly married couples have financial difficulties, they may be settling into a new home and sadly, all too often, they may be moving in with parents or in-laws while awaiting local authority housing or saving enough money to allow them to purchase a house privately. These are the problems which married couples face and it is very important to protect them. The one protection we can give them is to prevent them from rushing into legal proceedings and this is what we are doing in section 7.
I fail to be convinced by the Minister's opening address on the amendment. He said he was not in favour of the section because it was more relevant to divorce legislation. It is not the first time that this red herring has been introduced to the debate on all Stages from that side of the House. How many times must we reiterate that we are not dealing with divorce legislation? We are dealing with judicial separation and family law reform. The suggestion that the section is more relevant to divorce legislation is not worthy of support. The section provides badly needed protection for the newly married couple instead of issuing a High Court civil bill six or seven weeks after marriage. This preventive clause will give them an opportunity of engaging in the process of conciliation, reconciliation, mediation, help and the kind of support to build a marriage and to protect it instead of rushing headlong into court. I made a comment about court procedures earlier on and I will repeat it: I do not believe that legal proceedings lead to reconciliation.
The Minister stated that the section would increase the adversarial nature of court proceedings but I fail to be convinced that that is the case. How can a preventive measure substantially increase the adversarial nature of proceedings? It would have the opposite effect because it would drive them towards the support groups, inadequate though most of them are. By deleting section 7, we are talking about something that has been bandied about in discussing the Bill in a derogatory manner when the concept of the "quickie" separation was mentioned. By passing this amendment, we are encouraging the concept of a "quickie" separation.
We are reducing the status of marriage by not allowing a preventive measure in the Bill. A very good case can be made for withdrawing the amendment and allowing this period of 12 months — not a very long period by any manner or means, having regard to the fact that the average citizen's greatest step in his or her life is marriage — for reflection. It is very important that the marriage is not dissolved in the way it would be if the section did not exist.
There has been a reference to the influence of section 3 (1) (f). Having regard to the amendment already made, does the Minister feel as strongly about the amendment now? In view of the narrowness and clearly defined concepts for separation following a recent amendment, is it still necessary for the Minister to proceed with this one?
Deputy O'Donoghue made a point on the rather emotive issues pertaining to marriage breakdown when he cited instances of what might happen when marital difficulties occur. Did he read subsection (2) which states quite clearly that if there are exceptional circumstances — and certainly the circumstances outlined by the Deputy were such as to lead me and any reasonably minded individual to believe that those circumstances were exceptional — it is open to a judge on an ex parte application to deem the circumstances exceptional. He can also arrange a hearing in about six weeks and, in the meantime, he can qualify it by advising them to seek support. If this advice was forthcoming from somebody with a judicial status, it could well be considered quite seriously by the applicant and the respondent.
The necessary valve is in section 7 to ensure that nobody is forced to live in an impossible situation if there is difficulty in a marriage. However, the restriction of 12 months will not make a huge difference. If there is a problem of an exceptional nature the valve will come into operation but our overriding concern must be for the protection of the marriage. From that point of view, it is important that the section remains in the form envisaged by Deputy Shatter so that the back-up services may be availed of instead of going beyond the point of no return as far as the marriage is concerned and where we, as legislators, will be seen to encourage people to seek decrees of separation instead of discouraging them. The status of marriage must remain as fundamentally important as heretofore.
There is a very wise old saying "if you want to know me, come and live with me". It has a grainy, gritty reality which did not come about by accident. It came about because people have realised for centuries that two people coming together even, as one commentator said recently, with unbridled optimism about marriage and the continuance of their married relationship, have to take into consideration that the adapting and the first difficulties a couple have to work through for the first months of their marriage are an absolute mine-field.
I wish to refer to something which, I hope, we are continuing to follow and to implement, the report of the Oireachtas Joint Committee on Marriage Breakdown. I would like to quote from page 14 of that report, paragraph 3.2.2, which states:
The Committee is concerned that support for marriage, especially during the early years when marriages can be most vulnerable, is at best inadequate.
On page 15, paragraph 3.4.1 it states:
The Committee received many submissions which stressed that marriages involving young persons are more likely to break down than marriages between persons of more mature years.
Debate adjourned.