An Bille um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2), 1995: An Dara Céim. Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Second Stage.

Tairgim: "Go léifear an Bille an Dara hUair."

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

The debate which we are beginning today represents the culmination of many years of determined and dedicated work towards addressing the problems of those whose marriages have broken down. Many tens of thousands of our citizens are involved in marriages which have broken down beyond hope of reconciliation, and which have in fact, if not in law, irretrievably come to an end. It is their welfare that I wish to place at the heart of today's debate, and the debate which faces us in the weeks to come.

A referendum on a Bill to amend the Constitution is a particularly solemn legislative procedure, involving the agreement of this House and the Seanad as a preliminary step to seeking the consent of the people. Governments do not propose constitutional amendments lightly or without care or examination. The Bill which I commend to the House today has been the subject of the most extraordinarily detailed legal and policy examination over many months prior to its publication.

This Bill is the latest stage of a careful and detailed programme of family law reform which has been pursued by successive Administrations. Under each and every Government over the past decade, including Governments involving both Fianna Fáil and the Progressive Democrats, as well as the three parties now in Government, this careful package of legal reform has been constructed.

Eighteen pieces of legislation have been introduced. All of the issues arising on marriage breakdown have received attention — except the issue which this Bill is designed to address, the right to remarry.

Much of the detailed work in preparing this Bill was done by the Cabinet sub-committee on divorce, and I would like to pay particular thanks to the members of that sub-committee, the Ministers for Finance, Health, Social Welfare, Justice and Defence and the Marine and the Attorney General, for the careful and detailed way in which the putting together of these proposals was approached.

This Bill is accompanied by a Government paper, entitledThe Right to Remarry, which sets out the detailed implications of divorce in relation to financial and legal issues such as maintenance, succession and pensions. That paper also contains the full text of a 39-section draft Bill which would be introduced by the Government following a “yes” vote.

In drawing up this draft Bill, and the associated Government paper, I and the staff of my Department have built upon the work of previous Administrations, but particularly on the White Paper on Marriage Breakdown published by the then Minister for Justice, Mr. Pádraig Flynn, in September 1992. Mr. Flynn's paper was an excellent basis for the Government's work during the three years which followed its publication, and I would like to take this opportunity to pay tribute to him for his key role as Minister in laying the groundwork for today's debate.

The White Paper set out the 1992 status of the work in progress on family law reform. TheRight to Remarry paper sets out the 1995 position, and I believe it represents an exceptionally comprehensive survey of all of the issues of interest to people in connection with divorce. In order to ensure wide access to the Government's information paper, I am arranging to have copies of the paper sent to every public library in the State, and every citizen's information bureau in the NSSB network, where it will be available for consultation.

The Government has made a clear and reasoned case in favour of this amendment. We will set out this case with integrity and commitment. We have constructed a detailed legislative basis for the proposed amendment which we now bring before this House for approval. We will set out our case for this amendment here and in every other forum available to us, in the confident belief that the Irish people will take this opportunity to vote "yes" for the right to remarry. The Government has a duty and a responsibility to give the people all of the information they need in relation to this issue, and in relation to family law entitlements generally, and we will discharge that duty fully. This Bill is not about party politics, about positioning oneself to appeal to this or that section of the community, or to maximise the benefits to oneself and it is not about scoring a political success. The only success that matters is success for the approximately 75,000 people involved in broken marriages in putting their lives and their legal affairs in order at last.

The Government welcomes the detailed debate on marriage breakdown. Ever since the decision to prepare a White Paper on Marriage Breakdown more than three years ago, family law reform has been high on the agenda of Governments. The high priority given to family law has given rise to a sustained degree of analysis and debate. a healthy and positive development. The debate in this House today is neither the beginning nor the end of that national debate on marriage and the remedies for its breakdown, but it marks a distinct phase in the Government's commitment to come to terms with social realities which have been ignored for so long.

I cannot but observe that those who are sometimes loudest in calling for debate on this issue do not always give enough recognition to the debate which has already taken place. Today we are not for the first time on a journey into unexplored legal territory. Rather we are jumping on a moving train, which has already traversed a vast expanse of family laws and family services.

In the sequence of events which led up to today's Bill, the role of Deputy Alan Shatter, must be recognised. His far-seeing decision to introduce the Judicial Separation and Family Law Reform Bill in 1987 led to the enactment of the 1989 Act, which in turn became one of the principal foundations of the Family Law Bill, 1994, and the draft Family Law (Divorce) Bill, 1995.

The development of services for the family and its members has also been an essential part of the Government's comprehensive approach. The Government PaperThe Right to Remarry sets out a number of the very many improvements in family services which have been made since the establishment of the Department of Equality and Law Reform in January 1993. Since then, funding to marriage counselling services has dramatically increased, and the counselling sector has been revitalised. The Family Mediation Service has seen its funding more than doubled and a development plan put in place. The Legal Aid Service has seen its most radical nationwide expansion since its establishment 16 years ago.

In developing these services, and in strengthening our family laws particular priority has been given to the protection of the welfare of children. The rights and welfare of children will continue to be a priority for my Department and for Government. I have asked my Department to undertake a review of the laws on guardianship of children generally, and I will give detailed consideration in that context to the helpful submission on children and marriage breakdown published yesterday by Deputy Michael Woods.

The Government has also taken the opportunity to look at divorce laws in other countries, and to see how we can address in an Irish context the concerns about some of those laws.

We are determined to protect and support the institution of marriage and the family in so far as is possible. We wish to ensure that divorce will not be available on an easy or casual basis. We wish to guarantee that there will not be an adjustment or easing of the basic grounds for divorce without reference to the people. For these and other reasons the Government has decided to propose to insert the basic conditions for divorce in the Constitution. The people are acutely aware of their relationship with the Constitution. They are its ultimate guardians and they appreciate that the Government is not seeking to take to itself the power to change, or make easier the grounds for divorce. Instead, the Government is inviting the electorate to support a form of wording which cannot be changed without further consultation with the people. This is the essence of democracy in action, and reflects an approach which has been considered carefully.

The overwhelming majority of people who marry do so with idealism, hope and determination to make it work. Some marriages have clearly irretrievably broken down. Many of the people affected have gone on to form subsequent long-lasting relationships within which children have been born. The adult partners in such relationships have few legal protections in our society. They and their children are denied the sense of worth which comes from being a fully recognised family within the community although they are such a family in every way except in the eyes of the law. One consequence of this referendum proposal, if it is approved by the people, is that it will enable these individuals to take on the dignity and status which is properly theirs.

This Bill proposes that Article 41 of the Constitution be amended so that a court may grant a dissolution of marriage only where it is satisfied that each of a number of specific conditions has been fulfilled. The first of these is that, at the date of the institution of the proceedings, the spouses have lived apart for a period of, or periods amounting to, at least four years during the previous five years. The term "living apart" is used in the Judicial Separation and Family Law Reform Act, 1989, and it is also a familiar term in many other jurisdictions where it has been held that this phrase will clearly cover where the spouses have physically separated and are living in different places. The case law also states that where domestic life is not shared it is possible for there to be two households under the one roof. The term "living apart" has a clear and settled meaning in the law, and I am satisfied that the courts will follow this meaning in a divorce context.

The amendment also provides that the four-year period of separation can be cumulated over a five-year period. The reason for this is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that, if it does not work out, they will not have lost their option to apply for divorce. The four year period itself is a guarantee that spouses will not enter into divorce lightly, and that they will have the necessary time to reflect on the serious step which they are undertaking. It may also encourage spouses to attempt to reach agreement on the terms of their separation in a way which will ensure that, if the divorce application does come before a court, many of the key elements relating to children, finance and property may already have been settled between the spouses. In this way, the hearing itself may well be less acrimonious than it otherwise might be.

Under this amendment, the terms on which individuals may obtain a divorce are real and substantial. There will be no "quickie" divorce under this amendment. There will be no divorce culture under this amendment. I have confidence in the innate common-sense of the vast majority of Irish people to make a judgement that the Government's response to the problem posed by the inability of people in second relationships to remarry, which arises due to the absence of divorce, is a balanced and measured one.

If the referendum is passed and divorce is introduced, people will not be able to enter into a marriage in the expectation that, if problems arise, divorce will offer them a speedy way out of their difficulties. The terms of the constitutional amendment reflect this society's awareness that marriage is a process, that it needs to be worked at, and that it is intended to be a lifelong commitment. However, where that commitment has come to an end, not today or yesterday, but many years ago, it is a denial of what we understand by marriage to demand that both spouses continue to be bound by a legal relationship which is devoid of real meaning.

The second condition of which a court must be satisfied before a divorce will be granted concerns the absence of any reasonable prospect of a reconciliation between the spouses. The fact that solicitors for both parties will already have discussed the prospects of reconciliation with their clients will, in most cases, be sufficient to indicate whether a genuine possibility of reconciliation exists. Clearly, if such a possibility exists, a divorce cannot be granted. That is also the reason legislation will specify that the divorce proceedings may be adjourned at any time to enable the spouses, if they both so wish, to work towards a reconciliation.

The third condition in the amendment is designed to ensure that vulnerable spouses and dependent children are provided for. It ensures that the court must be satisfied, having regard to the circumstances, that proper provision exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law. This last phrase is designed to cover a child where a spouse isin loco parentis, for example.

As will be seen from an examination of the terms of the draft family law (divorce) Bill, the court will have extensive powers at its disposal, which parallel those already available to it in the context of judicial separation, to make financial and property adjustment orders in a way that is designed to do justice to both parties and to any dependent children of the family.

These powers include the ability to make a maintenance order which can be either periodical or a lump sum payment. Orders for the direct deduction of maintenance out of the paying spouse's earnings may be made. A property adjustment order, whereby property may be transferred either to a spouse or to a dependent child of the family is also possible. Detailed provisions will govern the position relating to occupational pensions so that, for example, a court may "earmark" a portion of the retirement benefit of the spouse who is a member of a pension scheme. In this way, when that person dies, the benefit will be paid directly to the former spouse. It will also be open to a former spouse to "split" the pension benefit so as to create an entitlement to an independent and separate benefit. The position with regard to succession rights is also dealt with comprehensively.

The draft divorce Bill also provides, as does the current legislation which allows for judicial separation, that in the making of all financial and property orders the court must have regard to a very broad range of matters so that the circumstances of both spouses can be evaluated in full. In particular, the vital contribution of a spouse who has chosen to look after the home and care for the family cannot be overlooked and must be taken into account by the court when it comes to the overall adjustment of property.

The fourth condition in the amendment is that a court must be satisfied that any further conditions prescribed by law are complied with. In the draft divorce Bill, an example of such a condition would be the condition that the Irish courts could dissolve a marriage only if one spouse had been living in Ireland for a year or was domiciled here when the case began.

This Bill, as I have already indicated, cannot be seen in isolation. It has been preceded, over the past decade, by a raft of legislation in the family area which is designed to support the family, both materially and otherwise. It is accompanied by a draft Bill which clearly spells out the detailed provisions which would apply if divorce is introduced here, In addition, counselling and mediation services are in place which will assist couples who wish to obtain guidance in resolving differences in their marriages or who are willing to negotiate separation agreements on an amicable basis.

Legal aid will be available to individuals seeking a divorce in the same way as it is now available to persons seeking a judicial separation.

The Social Welfare (No. 2) Act, 1995, ensures that a divorced person will not be at a loss in terms of his or her social welfare entitlements. Detailed taxation provisions have been devised which, in essence, will mean that divorced couples will be treated the same way for income tax purposes as separated couples. Similarly, property transfers between former spouses on foot of a court order governing a divorce settlement will be exempted from all capital taxes. Taken together, these provisions amount to a package which ensures that divorce, if introduced here, will be underpinned by firm legislative supports and will not operate in a vacuum.

I am pleased to be able to inform the House that the Department of Foreign Affairs is making arrangements on my behalf to ratify the UN and European Union conventions on maintenance within the near future. This will enable me to make an order giving effect to the maintenance Act shortly.

When the body of family legislation which has been put in place over the past decade is taken as a whole, and put in the context of the comprehensive package of services and measures developed by Government, one fact, essential to this debate, is highlighted. The problems of marriage are with us already. The costs of marriage breakdown, both social and financial, are with us already. Those problems and costs must be faced by society, independently of the proposed referendum, and that is what we have been addressing over the past decade. What this Bill proposes to add is to give legal recognition to the fact that unfortunately some marriages can and do irretrievably come to an end, and to enable the option to be given to the parties, if they so wish, to remarry.

This House has a duty to approach this issue with responsibility and care. There will be many voices who will urge on us a narrower view of our responsibilities as parliamentarians, or who will put forward closed or curtailed versions of society or our social objectives. But our role is to take the broad view — to address the welfare of the people and the reality of their lives, even where that reality has fallen short of their hopes and aspirations.

Members of this House are asked on an almost daily basis to help people experiencing legal, administrative, or practical difficulties of one kind or another. We know as well as anybody the extent of the problem of marriage breakdown that exists in Ireland today, and the increasing difficulties being created by the failure of the law and Constitution to recognise the reality of that problem.

For all of these reasons, the Government has brought this Bill before this House and is seeking the approval both of the Houses of the Oireachtas and of the people for our proposals. I hope, in the weeks ahead, that while Government and Opposition will inevitably have differences in emphasis, we can find common cause in seeking a "Yes" vote in the referendum in November.

The weeks ahead will provide many opportunities for us to set out our case with clarity and detail. I am confident that when the Irish people are asked, as they will be on 24 November, whether they are willing to recognise in law the situations of so many tens of thousands of people in this country, and to accord to them, if they so wish, the right to remarry, the answer they will give will be "Yes".

The Fianna Fáil Party supports the principle of changing the Constitution to allow for remarriage and will support the passage of this Bill through the Oireachtas. The party is deeply committed to upholding in a positive way the primary role of the family in Irish society but this includes support, understanding and the provision of legal remedies for families involved in marriages that break down. We regard as particularly important the inclusion of children, vulnerable spouses and other family members in the Fifteenth Amendment of the Constitution (No. 2) Bill.

We have made it clear that we will not support quickie divorces. That is why we sought the four year gap between breakdown and divorce to allow for counselling, reconciliation and a period of adjustment, especially for children. The wisdom of this approach is confirmed by the findings of our recent research into the effects of marital breakdown/divorce on children. Apart from the opportunity this gap provides for counselling and reconciliation, it also provides a crucial period for children to adjust to the emotional and psychological trauma.

We saw the need to underpin the serious commitment involved in marriage and the high regard in which we hold that institution as the fundamental unit of society. Our approach is based on balancing responsibility for the family with compassion for those whose marriages have broken down and who wish to remarry.

The Government has met the criteria which we considered essential in framing this document. Accordingly, we support the Bill. It may be inconvenient but security for children must be copperfastened in the Constitution. We intend to press for the strongest possible support and protection for children in the divorce legislation because they are the most vulnerable and most frequently harmed by the disharmony and acrimony which is often experienced in marriage breakdown and divorce.

Why should we support this amendment? The issue of divorce and remarriage is a difficult one for Irish society. We have a strong family tradition on which we place great value. Over 95 per cent of marriages in Ireland are still recorded as intact. This compares favourably with over 80 per cent in the UK and over 70 per cent in the USA. However, the rate of breakdown and separation in Ireland has accelerated over recent years. The rate of marriage breakdownvis-á-vis new marriages in 1994 has reached an alarming rate of one in six marriages. We now have a significant number of people who want to remarry. They come from within the 75,000 people who were recorded in 1994 as being from broken marriages. The key issue for society is how to respond to the demand from a growing number of our citizens for the right to remarry. There is also a demand from others for divorce so that they can end an unhappy, acrimonious marriage and broken relationship.

We recognise that in providing a right to remarry additional problems — over and above those which arise at present from marital breakdown — may arise by virtue of remarriage. We are already dealing with the disharmony and damage which result from breakdown and separation. We must now address in a calm, considerate, caring and practical way the extra difficulties which can occur as a result of remarriage. Most of the problems are already there; the extra challenge is to focus our minds and actions on the supportive work in which we should already have been deeply engaged in tackling the problem of marital breakdown.

In supporting this Bill we look forward to the Government putting in place a five year strategic action plan to address and provide solutions for the downside aspects of marital breakdown, separation and divorce. Should the Government fail to implement such a programme we will do so on return to office. The programme should be put on the table before the referendum takes place and it should include the five year strategic action plan.

I welcome the Minister's comment that he will give detailed consideration before the referendum to our submissions and to the paper we presented earlier. Under the five year action plan — which we believe to be particularly important — many actions can be taken. The Minister might suggest some and I will suggest a number which will highlight the important issues.

We need to address the declining status of marriage, particularly in the perception of young people. There were 18,573 marriages in 1986; by 1994 the number had declined to 16,297. In practical terms, the lack of a job and the inability to get a house or to get or sustain a mortgage have a devastating effect on those who wish to marry. It also puts marriages under extreme pressure during the early years. All TDs will be aware of such problems from their constituency work.

We are also faced with important changes in the workplace. Increasingly, both parents are likely to continue to work either full-time or part-time. Arrangements in the workplace in relation to childcare will be necessary to keep pace with developments in the status of the family in our society. The taxation system should enhance the family and should support families with children, especially where incomes are low. As part of the current programme, the Minister for Finance should set up a review committee to make proposals for the development of the tax system to enhance the position of families and especially families with children.

It is essential that we have a skilled, professional counselling service throughout the country that is adequate to meet demand. At present, the need for counselling is met by voluntary organisations for which extra funding has been provided in recent years. They have built up a highly professional service and they should receive the funding they need to provide a service to all who need it throughout the country.

It is essential to ensure that this service is availed of by all those whose marriages are in difficulty. It would be a tragedy if the opportunity to resolve marital disharmony and preserve families intact were neglected or ignored because, perhaps, one or even both spouses were focused solely on reaching separation or divorce. The divorce Bill, therefore, should contain a provision which would oblige the spouses in separation or divorce situations to participate in counselling. Proof of meaningful participation should be an essential prerequisite for securing a divorce from the court. The proof could take the form of a certificate from the counselling service or a similar document. This approach would ensure that counselling is not overlooked, neglected or deliberately avoided by people who might be excessively focused on the separation or divorce.

There must be a positive programme of financial support for less well off families who are experiencing marital disharmony. The State supports families under stress through various measures, including household budgeting, money advice centres and personal development courses. These are valuable in tackling the roots of the problems which cause tension. The problem of inadequate housing, in particular, should be examined in the context of being a contributory factor to marital breakdown.

It is important that young people are educated and prepared for marriage as a lifelong relationship. The schools curriculum can be used for this purpose. Children and young people should learn about the importance of marriage as a source of well being for most adults and of its importance for the stability and general welfare of society. They should be educated to see lifelong marriage as a desirable status for adult life. The Government should develop an educational programme of this kind as soon as possible.

We need better support and time out for parents who care for children and people with disabilities in the home. A start has been made in the social welfare area, but this should be followed up by a system of credits which recognise the value to society of such work in the home, to help families, particularly those where husband and wife are working, to deal with marital difficulty. Legislation should be introduced to provide for "time out" or leave where one or both need to devolve time to preserving the marriage. Periods of leave of this kind might be appropriate while the couple are engaged in counselling or mediation.

Where all efforts to save a marriage fail and separation and-or divorce is taking place, in order to minimise the harmful emotional and psychological effects on children and to minimise the emotional trauma being suffered by parents, it is essential that there is available throughout the country a skilled professional mediation service. Whatever resources are needed to put such a service in place must be set aside for this purpose. The current level of expenditure, at £300,000, is entirely inadequate to support a nationwide service.

We are concerned about how pension rights can be resolved in mediation given that, under section 11 of the Family Law Bill, 1995, passed last week, it appears that it will be necessary to get a court order to split pensions. Perhaps the Minister could clarify this position in his reply. If it is necessary to get a court order this will, of course, deter people from mediation. We believe that mediation is particularly important and valuable and it is important to develop a national network of mediation services. We are not looking for compulsory mediation, as takes place in some countries, because it is almost a conflict of terms in itself and we recognise that. We feel that information is somewhat different and people should at least have to avail of the information, particularly in relation to children.

In order to establish objectively and as precisely as possible the effects of marital disharmony, separation, divorce and remarriage on children, the Fianna Fáil committee set up to advise the parliamentary party on all aspects of marriage breakdown undertook an examination of this topic. This committee has available to it the best expertise in the field of psychiatry and child psychiatry. At the request of the committee, these experts conducted a study of available professional literature on this topic. They produced a paper which reviewed the outcome of over 200 studies conducted world-wide to ascertain the effects on children of marriage breakdown and divorce.

The conclusions which they drew from these studies are briefly as follows. In the short term, the first one to three years of marital conflict, through separation and/or divorce and remarriage, children can suffer significant emotional and psychological harm. In the long term, some children suffered serious long term social disadvantage characterised by poorer educational and career achievement and a predisposition to marital disharmony.

In supporting this Bill, we do so on the basis of these downside effects and on the grounds that they are recognised and addressed. The first step in that direction should be that real protection for the interests of children will be built into the divorce legislation. The welfare of children in this context must be given due status and consideration. I am happy that the Minister, in a helpful way, is prepared to look at that aspect immediately.

In order to ensure adequate protection for children in practice, we believe that there must be a statutory officer whose job it would be to ensure that the interests of children are vindicated by the courts in disputes between the parents. Thus, we propose that there be a commissioner for children attached to the courts who would be responsible for highlighting to parents the needs of children in marriage breakdown/divorce and for pressing the needs of children in court where necessary. It could also be helpful if parents had to go through an information session on the short- and long term effects on their children of the marital breakdown/divorce, to advise them on the legal implications of guardianship, custody and access for themselves and for their children, and on the potential financial cost of separation and divorce.

The greatly extended civil legal aid network provided by the Fianna Fáil/Labour Government is now meeting needs in a much more realistic way. We now have a nationwide network of 30 law centres and £6.2 million per annum in Exchequer funding. The introduction of divorce would lead to a greatly increased demand for the service provided by the legal aid system over the first few years. It is important, in the five year programme, to make allowance for that and to ensure that the service is provided over that period.

Since the introduction of judicial separation in 1989 we have seen a huge increase in the number of family law cases going through the court system. In the event that this amendment is passed, we must be prepared for another large increase in family law litigation, at least in the short term. At present, there is only one Circuit Court judge assigned to hear judicial separation cases for the whole of Dublin. In country towns, the Circuit Court hears family law cases for only one day every three months — that is only four days a year. Delays of over a year or 18 months are average before a person gets his or her case to court.

Apart from the shortage of judges, facilities are clearly inadequate. People who are contesting family law cases often find themselves in a draughty corridor opposite the spouse who caused them so much pain, waiting for hours until their case can be heard. Courthouses rarely have enough private consultation rooms or comfortable waiting rooms for the dozens of people who attend every day. Even without the introduction of divorce, this situation cannot be allowed to continue.

As part of our five year strategic action plan, we call on the Government to introduce the following: at least three new Circuit Court judges to deal exclusively with family law, one to be based permanently in Dublin; a separate family law court with a specialist judge in the country areas, as is currently the practice in Dublin; and the upgrading of courthouses to provide private consultation rooms and at least two waiting rooms so that spouses do not have to wait together. These three positions should be put in place as early as possible, so that the system will be ready for divorce cases, if they come on stream in two years' time.

We would also recommend a comprehensive review of the family law court system at the end of the five year period. We are not asking the Government to agree instantly to these proposals because we know it will take time to deal with them. However, we feel it is particularly important in advance of the referendum to put the cards on the table, say what will be done and make the commitments here and now on a time scale of over five years. This is reasonable but also very necessary and we ask the Government to proceed along these lines.

There has been much controversy surrounding the Government's apparent plans to spend £500,000 on a PR campaign to promote a "yes" vote in the referendum. I say "apparent" plans because I do not know what the position is at this stage. I am totally confused and the Government itself seems confused as to what exactly it will do. In my view the Government has a clear right to put forward its own proposals and advocate their acceptance. As the decision makers in a referendum are the people, the Government has a responsibility to ensure that both sides of the issue are adequately ventilated so that the people can make a fully informed decision. In that context it is clear that a heavily financed PR campaign on one side without a similar campaign on the other is not conducive to achieving the balanced flow of information which would enable the people to make the best decision.

Before the House rose for the summer recess, I asked the Minister to consider this aspect and to try to ensure balance. During the summer Deputy O'Rourke also called for balance in this area. Our spokesperson on the environment, Deputy Dempsey, suggested the present commission to resolve this problem. This was accepted in principle by the Government although I think Deputy Dempsey would have preferred if it had gone further. Consequently, for this occasion we have a commission with a limited brief and resources. For the future a parliamentary commission should be established to oversee the holding of a referendum and to distribute a specified budget to ensure balance. Even at this late stage the Minister should tell the House what his plans are in regard to funding a PR campaign in this referendum. I hope he will do so when he is replying to this debate.

Fianna Fáil has been entirely constructive on this important issue since it was raised in the 1986 referendum. Since that time many of the deficiencies which were then identified by us have been put right by Fianna Fáil led Governments. The Minister referred to 18 Acts and he is right when he says that a major body of legislation has been implemented in the interim. We now have a substantial body of modern legislation to cater for marriage breakdown. We also have greatly improved the support services for those involved. While I would be critical of these services in some respects. I fully recognise there has been considerable improvement, more so in some cases than in others. Coping with the consequences of marriage breakdown, separation and divorce is an ongoing process.

We support this Bill as being appropriate at this time. We support the placing in the Constitution of these important provisions. We called for it in advance, we were sincere in what we said, we believe the Minister is right in what he has done and he will have our support. We also rely on the Government to put in place the additional measures we have identified to address the downside effects of marriage breakdown, separation and divorce. If we address these measures, everybody in the House can be satisfied with what we will have done. This is the desire of every Deputy.

Tairgim leasú a 1:

Go scriosfar na focail go léir i ndiaidh "Go" agus go gcuirfear an méid seo a leanas ina n-ionad:

"ndéanann Dáil Éireann

(i) ós eol di mian iliomad daoine an Bunreacht a leasú tríd an gcosc iomlán ar an gcolscaradh a aisghairm, agus

(ii) ós í a tuairim go mbeadh sé neamhiomchuí coinníollacha mionchruinne sonracha chun colscaradh a thabhairt a chur isteach sa Bhunreacht, diúltú anois an Bille a léamh an dara huair.".

I move amendment No. 1:

To delete all words after "That" and substitute the following:

Dáil Éireann—

(i) conscious of the desire of many people to amend the Constitution by repealing the absolute ban on divorce, and

(ii) being of the opinion that it would be inappropriate to insert in the Constitution detailed and specific conditions for the granting of divorce, declines now to read the Bill a second time.".

Before I explain our reasons for moving this amendment and consider the detailed provisions of the Bill. I wish to make one matter crystal clear. Since the day the Progressive Democrats were founded, we have supported the lifting of the constitutional ban on divorce. It has been a central plank in our policy for ten years and during that time we have not altered our position one iota. I bury any notion that the Progressive Democrats have changed tack on that issue. If there is any doubt in anybody's mind, let it be buried forever.

This party also believes the Government is making a fundamental mistake in inserting in the Constitution the conditions on which divorce will be granted. The House should not need to be reminded of the catastrophic consequences which flowed from the well meaning but ultimately misguided abortion amendment of 1983. The trauma of the X case, the bitterly divisive debate which followed it and the three constitutional amendments which were required to clean up that mess should have shown the House in no uncertain terms that it is folly to attempt to legislate by way of constitutional amendment.

Trying to put the terms into the Constitution shows the House in a bad light. It indicates we do not learn from experience. The Progressive Democrats believe we must learn from experience. In this case experience has relentlessly shown that the Constitution should not be used when legislative action is more appropriate. To use an analogy, it is like using an articulated lorry to deliver a letter. The letter will arrive and this is better than it not arriving but it is grossly out of proportion in that it misuses the truck and energy. Using the Constitution for this purpose is a precedent of which nobody in this House should be proud and, if followed in years to come, it will trivialise and damage civic understanding of the Constitution.

That being said, we welcome the fact that the electorate is being given the opportunity to vote on the question of whether to lift the divorce ban. Like many other groups, such as the Church of Ireland, and like many legal commentators, we believe that the manner in which the question is phrased is wrong. This has always been our position and it is why I was so outraged when the Minister accused us of having done "an extraordinary U-turn" on this issue. His attack was based on a statement I made in the House on 26 March 1993, during the debate on the White Paper on Marital Breakdown. I am not entirely clear how he arrived at this conclusion. The position appears to be that he inferred from what I said on that occasion that I supported the notion of inserting the detailed conditions for divorce into the Constitution. He is wrong. The Dáil Official Report of 26 March 1993 shows that I said the following:

Since its foundation the Progressive Democrats have actively supported and worked for the repeal of the provision in the Constitution which provides that no law shall be enacted providing for the grant of a dissolution of marriage. Should the remainder of Article 41 be left in place? A question arises as to whether any constitutional amendment should be a simple deletion or whether there should be an insertion that the State can enact laws providing for the dissolution of marriage.

The Progressive Democrats Party is committed to far reaching constitutional reform, but even if there is to be a single issue referendum in the lifetime of this Government on divorce, the exact nature of the amendment is still a matter on which we have to proceed carefully. It would be a major mistake to insert into the Constitution a set of circumstances in which divorce can be granted. The Constitution is not the place for such provisions. The last attempt of the Fine Gael-Labour Coalition to deal with the issue by referendum was unduly complex and we suffered because of that. If simple deletion is possible having regard to Article 41.3 that would be preferable, but perhaps a new Article is necessary. I put forward the following wording for discussion:

That the State may, however, by its laws provide for the grant of a dissolution of a marriage where it is determined in accordance with such laws that such a marriage has irretrievably broken down and that such a dissolution would be just.

In the past we have seen that complexity in a referendum leads to its own problems. It would be a fundamental mistake to set out in the Constitution any condition for irretrievable breakdown, or any preconditions for divorce. The proper place for that is in statute law.

The statement I made then set out clearly a policy in favour of divorce but against the insertion of the conditions for divorce into the Constitution. It is a position which I and my party colleagues have held consistently ever since. It is a position we have stated publicly and which, as the Minister very well knows, we have also expressed to him in private forcefully and repeatedly. I am at a loss to understand how the Minister can accuse me or my party of having done a U-turn in the light of what the Dáil record shows.

If the Minister or his advisers had taken the trouble to read the contributions to the debate that followed, he would see that my views were supported by the Democratic Left speaker, Deputy Eamon Gilmore, who is now a Minister of State, as well as by Deputy Joe Costello of the Labour Party and Deputy Trevor Sargent of the Green Party. Furthermore, the Minister, in column 1063, actually congratulated me for my "very constructive contribution" to the debate. So if anyone has made a U-turn it is not me.

I hope the Minister and his colleagues in Government will now call a ceasefire in the phoney war and the political misrepresentation. Sniping is fruitless, misleading and dangerous because it diverts the electorate's attention and the Minister's energies from the real issues in this debate.

The Minister rightly said the Bill is not about party politics, and that is the way we should proceed. A constitutional referendum is the only medium through which the people have an opportunity to directly make law. This referendum is of crucial, even historic, significance both for society at large and for the many people whose marriages have broken down and who are now living in a state of legal limbo.

The amendment has been brought before the House by the Progressive Democrats because of our strong conviction that the Government's intention to enshrine the conditions for divorce in the Constitution is a fundamental error. We would be shirking our duty as legislators if we did not do everything in our power to try to persuade this House to change its mind.

The Government's proposed amendment will insert into the Constitution four separate conditions for granting a divorce. Before considering the effect the provisions will have in practice, it is important to remind this House that there are other Articles of the Constitution which the courts will be obliged to take into account when interpreting the amendment and when applying any legislation that may later be passed on foot of the amendment.

Article 41.1 of the Constitution provides that:

1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 41.3.1º, the subsection which also contains the prohibition on divorce, provides that:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The effect of these provisions on the interpretation of the proposed amendment, and any legislation which may be brought on foot of it, is immeasurable. Given the strong degree of protection they provide for the family based on marriage, it is impossible to avoid the conclusion that judges will be constitutionally obliged to give the new amendment the narrowest possible interpretation. I will return to that point later.

On the specific provisions of the amendment, the first and key provision is that couples will only be able to apply for a divorce where they have lived apart from one another for a period of or periods amounting to at least four years during the previous five years. This provision will rapidly become the single most litigated provision in the Constitution. Although, on their ordinary meaning, these words appear to me — and I believe to most people — to require the couple concerned to have lived separately in separate accommodation for the four year period, the Minister has stated his belief, reiterated here today, that judges will come to interpret this phrase in a broad way so as to permit couples who live separate lives under the same roof to apply for a divorce.

It is certainly true that in other jurisdictions courts have interpreted similar provisions in this manner. For example, in England the concept of desertion has come to include not only the physical withdrawal from a place but also a mental withdrawal from a marriage. However, this analysis ignores the fact that Irish constitutional law, unlike that in other countries, requires the State — and this includes judges who are engaged in interpreting the law —"to guard with special care the institution of marriage" in the language of Article 41.3.1º, and "to protect the family in its constitution" in the language of Article 41.1.2º.

These Articles will place a constitutional obligation upon judges to interpret the phrase "living apart from one another" in the narrowest possible manner. In practical terms this will require couples to separate fully before there will be any possibility of a divorce being granted to them. Before the full impact of the proposed amendment can be appreciated it will be necessary for the Supreme Court to pronounce upon it.

The interpretation of the phrase "living apart" is of more than just academic or theoretical importance. It will, for example, be of huge practical significance for people living in local authority housing. As those of us who are involved at local level know, no one will be re-housed by their local authority unless he is regarded as homeless. Where a couple separates amicably by way of a formal or informal separation agreement, the local authority will not re-house the person who is leaving the family home since he or she is regarded as having voluntarily made himself or herself homeless.

If the spouse who is leaving is to be re-housed, local authorities currently require the separating couple to obtain a court order, known as a property transfer order, directing the spouse concerned to vacate the property. Only then will that spouse be placed on the local authority waiting list, and we all know how long such waiting lists are.

The only way this order can be obtained is under the Judicial Separation and Family Law Reform Act, 1989. In other words, couples who are in this situation — no matter how amicable the separation and even if all issues of maintenance and custody are agreed — must go to court for a judicial separation before they can actually start a new life in separate homes. The option of going to their solicitor and negotiating a separation agreement will be closed to them. To these couples the question of how living apart is to be interpreted is of more than theoretical interest.

Should the courts decide that the wording permits couples who have been living separate lives under the same roof to apply for a divorce, they will have the option, at least, of attempting to struggle through the requisite four years under the same roof. Whether that is a good thing for the individuals concerned or, in a very acrimonious situation, whether it is a good thing for the children, is open to question.

However, if the Minister is wrong and the courts decide that couples must live separately in separate accommodation for four years, the picture is very different. Couples who are the tenants of local authority housing will be forced to apply for and obtain a judicial separation before the four years can even start to run. This is grossly unfair. Tenants of local authority housing will be at a huge disadvantage in terms of costs and delay.

People rich enough, however, will be able to start the four year clock running as soon as they wish after the marriage has broken down. They will be able to go their separate ways as informally or formally as they choose. The clock will start to run as soon as one spouse packs his or her bags.

By contrast, tenants of local authority housing will have to wait to see a solicitor. They may have to wait for many months if they require an appointment at a law centre. They will then have to apply for their judicial separation. The costs attached to that may be considerable but the delays may be even more considerable. In a non-contested case they may have to wait for six months, while in a contested case they may have to wait for two or more years.

The Minister has repeatedly stated that it will not be necessary for couples who wish to divorce to get a judicial separation. While there is no requirement in the proposed amendment or in the proposed divorce legislation that couples do this, the Minister has ignored the danger that many couples will, for practical reasons, be forced to get a judicial separation whether they want one or not. This may add a further two years to the process of obtaining a divorce for some couples. After they have completed their four year separation, couples may then be forced to wait for a further two years pending the hearing of their divorce application. Given that every contested case is appealable and could lead to a constitutional action, it will be almost impossible for lawyers to advise their clients on when the process of obtaining a divorce will reach a final conclusion. This means there will be no quickie divorce.

In this climate of uncertainty and confusion, with the lengthy delays inherent in the amendment, many couples will separate at the first sign of trouble in order to start the four year clock running. I do not believe that people, particularly women, will delay getting into a second relationship and starting a second family. In other words, this wording militates against what should be the Government's two principal objectives, encouraging couples to stay together and regularising the position of second families. At present, it could take up to two years to obtain a judicial separation. People will then have to wait a further four years before applying for a divorce and then it could take them a further two years to get into the divorce court — a total of eight years. Unless there is a substantial increase in the number of judges and court resources, court delays will substantially increase.

The Government's recently published information paper on the divorce referendum states that in 1994 there were 3,000 applications for a judicial separation and 4,400 applications for barring orders. If these applicants applied for a divorce, the number of applications to the Circuit Court would increase from 3,000 to 7,400. A percentage of the 75,000 people who are already separated must be added to that figure.

There are other difficulties with the wording which the Government seeks to enshrine in our Constitution. The second condition requires the judge to satisfy himself or herself that there is no reasonable prospect that the spouses can be reconciled. In other words, there will now be a constitutional imperative on judges to ensure that there is no reasonable prospect of a reconciliation between the spouses and that proper provision, having regard to circumstances, exists or will be made for the spouses, for children of either or both of them and for any other person prescribed by law.

Court hearings will, therefore, have to be more detailed and judges will be constitutionally obliged to take more time over each case in order to satisfy themselves of the complete financial circumstances of the parties and the arrangements for the children. Judges will not be able to accept without inquiry even consent orders, where people have agreed all terms of the divorce order and where there is no acrimony. They will still have to satisfy the judge in relation to financial arrangements and arrangements for the children. Furthermore, judges will have to inquire into the background of the marriage in order to satisfy themselves that there is no prospect of a reconciliation.

I do not think anyone can predict how judges will interpret their constitutional obligation to ensure that there is no reasonable prospect of a reconciliation. Some judges may take the view that any couple who has reached the divorce court must of necessity be unable to be reconciled. Other judges may take a more subjective view of the matter. If one spouse contests the divorce and states that he or she wishes to try again despite everything, is a judge required to take that person's word for it? Is the judge required to direct the couple to try again? We do not know. However, we know that judges have little or no experience of family law, that they do not receive any formal post-qualification training in the area and that, in default, many judges have nothing to fall back on but their own experience of family life, whether good, bad or indifferent.

I agree that judges should be trained and that there should be comprehensive support services for married couples and the family, especially counselling and mediation services. I welcome the fact that increased resources have been made available in those areas but it saddens me that it takes a divorce referendum to focus attention on family life. We must deal compassionately with those who are in need of our support and we must care for children in particular. Thisquid pro quo sends out all the wrong signals in relation to divorce.

Divorce will not cause marital breakdown because that is already a sad reality. I agree with the Minister who said:

The problems of marriage breakdown are with us already. The costs of marriage breakdown, both social and financial, are with us already. Those problems and costs must be faced by society...

My party wants to see those who want a loving relationship to be acknowledged by the State and given that opportunity. I wish the Government would accept that there is a better way to do this. I have highlighted some of the difficulties with the proposed amendment to the Constitution. The issue of divorce and the type of divorce regime to be introduced will always be a vexed and controversial one. That is one of the reasons it is wrong to enshrine it in the Constitution.

I am pleased to have the opportunity to speak in the House on the Fifteenth Amendment of the Constitution (No. 2) Bill, 1995, which represents the Government's determination to present the people on Friday, 24 November, with a careful and responsible approach to the removal of the ban on divorce from the Constitution.

Today's debate marks the culmination of many months of painstaking and often tedious work by my colleague, the Minister for Equality and Law Reform, Deputy Taylor. I am conscious that the Minister has devoted three years of hard work to identifying and closing loopholes that have existed in the area of family law reform. I take this opportunity to acknowledge the work of the Cabinet subcommittee which has devoted many hours to considering the many complex issues involved in the area of family law and divorce and has ensured that the proposals we are debating today have the full support of every Member and, I hope, will gain the support of the majority of the House.

It is only right that the Government should have invested so much time and thought in preparing and presenting the people with a balanced and commonsense approach to the right to remarry. The people have now been presented with the most carefully prepared and well informed campaign in the history of constitutional referenda. The Government has approached this debate with clarity and vision. We realise that we face a period of intense but, I hope, open and honest debate. I hope that in the course of that debate we succeed in avoiding the politics of fear which in the past have caused so much hurt and destruction. Deputy Keogh's contribution attempted to scatter seeds of destruction. The Progressive Democrats' amendment demonstrates political antics and posturing. I remind the House that the 1986 wording also included the terms on which a divorce may be granted — this inclusion of the terms in the constitutional amendment was not a political issue at the time. The Progressive Democrats supported putting the conditions of divorce into the Constitution as a means of providing guarantees for the people.

Why have the Progressive Democrats chosen to express their opposition in this manner while maintaining they support the introduction of divorce? They are certainly creating doubt among their own supporters. I consider the Progressive Democrats' amendment and the arguments they have put forward a non-issue. Any attempt to make a comparison between the wording of the 1983 amendment and the wording before the House today is simply a non-runner. The 1983 amendment expressed a vague statement of principle while the wording today is clear, precise and easily understandable.

As politicians we all have a very acute sense of realism about the removal of the ban on divorce from the Constitution. At present divorce is prohibited in all circumstances and, as legislators, we have no power to introduce any from of divorce without the approval of the people. Therefore, the Government has taken the decision to provide the people with a constitutional wording that not only removes the ban on divorce but also spells out clearly the conditions for divorce. The people who are the creators of the Constitution, will have the ultimate sanction to give vigorous effect to the Government's fifteenth amendment. As democratic legislators I hope we will soon be in a position to dispose of the Progressive Democrats' concerns and that all parties in this House will work together in what is our definitive objective — the removal of the ban on divorce.

Since 1993 the Minister has succeeded in completing a major programme of family law reform. He has built on the work carried out by successive Governments. Over the last decade a series of measures have been introduced to create a legal framework which reflects the fact that marriage breakdown has become a sad reality of Irish life and that the State needs to take a very forceful role in ensuring that the rights of children and spouses are protected. Thus, a careful and thoughtful package of measures has been put together to strengthen our family law, update mediation services for families and improve provisions on the welfare of children, maintenance, property, pensions, domestic violence, civil legal aid and many other issues.

It has been clear throughout that time that the process of family law reform could not be completed without addressing the issue of remarriage. The net issue that remains, after all the legislative and administrative changes of the last ten years, is whether there should exist in this country the right to remarry for those whose existing marriages have irretrievably broken down. The Government is convinced that to continue to deny such a right would represent a grave injustice to many thousands of our citizens. That is why we are asking the people on Friday, 24 November, to vote in favour of change, remove the constitutional ban on divorce and replace it with the carefully considered wording that is before the House today.

At the centre of the proposed wording is the Government's support for the family and the institution of marriage. The authenticity of this support can be seen in the package of action, involving both laws and services, to prevent marriage breakdown in so far as possible and to provide mediation services for couples and children when irretrievable breakdown occurs. There has been a dramatic increase in Department of Equality and Law Reform funding for marriage counselling organisations which provide pre-marriage counselling and assist marriages under stress.

The Government has introduced legislation to raise the age of marriage from 16 to 18 and to require three months' notice of intention to marry. In addition the State has radically increased the funding of the family mediation service and I understand a new blueprint for the service is in the process of being implemented. This will ensure a more widely available service for families throughout the country. The Government recognises the family as a fundamental part of our society and is committed to legislation designed to help families. The Government has set up a commission on the family to advise on family issues in the context of a changing economic and social environment.

Despite all the good intentions in the world, relationships can and do break down. We all know of people whose marriages have broken down and we all know of people whose only wish is for a second chance. I believe these people should have that right. It is against this background, the development of a balanced and commonsense package of family law reform, that the State is now recommending to the people the recognition of the right to remarry. Support for the Government's wording on Friday, 24 November, will create a more tolerant and compassionate society for all our citizens.

It is a reality of Irish life that, despite the absence of a right to remarry, marriage breakdown has continued to exist and, unfortunately, increase in Ireland. The latest Labour Force Survey indicates that 75,000 people are involved in broken marriages. No right to remarry has not meant no marriage breakdown. The absence of divorce in Ireland has not safeguarded those spouses and children who have witnessed the disintegration of their parents' marriages. It has not protected them, as we should all like to protect our children, from the initial pain and confusion which result when parents decide their marriage is at an end.

As we are all aware, the unavailability of divorce in this country has meant that the lives, relationships and commitments of a large number of people have become increasingly divergent from their legal status. Is it a help to them, or to our society, that we continue to ignore these facts and fail to recognise the reality that some marriages can and do come to an end beyond any hope of reconciliation? The Government cannot continue to ignore these realities and has a responsibility to provide a legal remedy for those whose marriages have clearly and irretrievably broken down. Our society is now mature enough to accept that marriages do irretrievably break down and that people need to be in a position to regularise their second relationships.

When the Government was considering the issue of marriage breakdown and the right to remarry it examined the experience of other countries and came to the conclusion that mistakes had been made in some countries where the right to remarry is too easy. We want to secure protection for the vulnerable people, especially children and dependent spouses. We are not asking the people to vote "yes" to easy divorce. There will be no "quickie" divorce under this amendment. There will be no "divorce culture" under this amendment. The wording before the House spells out that spouses must be living apart for four years during the five years preceding the application. This will not be changed without the agreement of the Irish people. No law could make the grounds for divorce easier without reference back to the people.

As public representatives, it is our duty to address, on an ongoing basis, legislation that protects the rights and reflects the needs of our people. Over the last ten years we have developed a coherent legislative framework of family law reform and, in order to complete that process, we must ensure that the removal of the ban on divorce in the Constitution is carried by the people. As legislators it is our duty to look beyond our personal experiences and to realise that our responsibility is to assist in the creation of a more tolerant and compassionate society on this island.

The referendum is being held on 24 November, a Friday. I presume the thinking behind this was that young people returning to their homes would be caught. Listening to the chat around my own table, I am not certain that the young people will necessarily voteen masse in favour of the amendment. However, on the basis that this was the theory behind the date chosen by the Government, I am not certain it was the correct one. For obvious reasons, I would not suggest Sunday 26 November would be the correct date; Saturday, 25 November might have been the convenient time to catch — and I use this word with respect — as many people as possible.

In time, I have no doubt the Government, whether or not it is a Fianna Fáil one, will look at Sunday as the proper day for referenda generally and general elections in particular. This is a small point and it is not intended to be a critical one. I am in favour of the referendum and I will vote yes. I make this point for that reason only.

It appears to be emerging that in some way I am intolerant of the point of view of those people who wish to vote "no", that I would be suggesting they might not be entitled to express their opinions. Throughout the whole country there will be a volume of "yes" and "no" points of view. That is as it should be in a democracy. While personally I might have any problem with it, I do not. I only want to place that on the record of the House.

I was on a programme with a Mr. McCarroll, who would be strongly and articulately against divorce. I was most impressed by him and his point of view. At the same time, we could discuss the different opinions in a civilised way and neither of us — nor other participants in that particular panel discussion — was injured at the end of the day. There was no blood on the floor. It was a civilised debate. We should try our best to raise the debate to a level of civility. This will show not only ourselves, which is important, but others outside this benighted island that we can deal with issues of this nature in a balanced and decent fashion and that we can listen with tolerance to the other person's point of view.

On the referendum Bill, I also want to pay tribute to the work of the Minister for Equality and Law Reform, Deputy Taylor, the Minister leading the campaign on this issue. He has been dedicated and single minded. I expect he does not suffer from an overdose of charisma nor do many of us in this House, unfortunately. This issue is not about charisma. It is about a Minister who has dedicated himself to pursuing a matter in which he believes. He has clearly outlined the parameters of what we can expect when divorce becomes a reality. Whether he is charismatic or not, I would have thought is, in the circumstances, irrelevant.

This is the type of referendum which should be conducted in a low key fashion. I do not mean low key to the point where one cannot hear those who are in favour or against. I am afraid the present Government falls into that latter category, despite the best efforts of Deputy Taylor, and I am glad to see my colleague in my constituency, Minister for Education, Deputy Bhreathnach, speaking publicly on this issue for the first time. I hope it will not be the last because it is important the Government and its supporters express the official Government line on this matter. There has been a deafening silence to date in that regard. I welcome this as the beginning of what we can expect from the Government in future.

To say that this debate is about divorce is misleading. Divorce is defined in "The Oxford Dictionary" as "the legal termination of a marriage, the separation of things that were together". Osborne's law dictionary defines divorce as "the dissolution of marriage". The present debate concerns a single issue. Do the Irish people wish to permit separated persons, whose marriages are no more, to remarry? That, as I understand it, is the net issue. However, it is not quite as simple as that.

The present law provides for the circumstances where marriages have broken down. It regulates the legal and financial implications of the breakdown of marriage for the parties to the marriage and the dependants. The only gap in the present law is that once a marriage has broken down the Constitution prevents the Oireachtas from providing the legal means by which separated persons would become legally entitled to remarry. If separated persons did not, following the separation, become involved in subsequent relationships —"living in sin" was the old expression and a term once popular — there would be no need to have this referendum since there would be no question of a remarriage. The constitutional prohibition on remarriage would, in practical terms, need no amendment. So-called liberals might decry the denial of their vision of human rights to the populace but, since the populace would have no need of their solicitude, there would be no popular call for the law to be amended.

Regrettably, and I say this from the heart, there is such a need. Few families in Ireland are untouched by marriage breakdown, including my own. The statistics may give rise to argument yet the fact remains that the breakdown of marriages in Ireland is a shocking and serious economic reality, not just for the individual family involved but for the country as a whole.

In Government, Fianna Fáil, as has been acknowledged generously by the Minister, introduced a comprehensive package of law reforms to tackle the fallout of the rising incidence of marriage breakdown. Apart from calling the divorce referendum in 1986 too early, the then Government failed to put in place the package which is now available to those people who find themselves in circumstances of separation or who would now have divorce available to them after 24 November, if this referendum is successful.

Fianna Fáil, as individuals and as a party, recognise the need to protect vulnerable parties in marriage breakdown. An intrinsic part of this recognition is the need to ensure that the law of the land is comprehensive, fair and accessible to all. Fianna Fáil has played its role in bringing forward the 15 pieces of legislation which are now in place; after last week there may be 16 pieces of legislation and there are two more to come. Soon there will be 18 pieces of legislation in place since 1986 which were not there before that date. That is some achievement and Fianna Fáil had a definite role in all of that. The Minister also generously acknowledged the part played by Fianna Fáil and particularly in the preparation of the White Paper on marital breakdown by former Deputy Flynn.

Within our party there are people with a different point of view than my own and I acknowledge this. I also acknowledge their entitlement, on the basis that we are a democracy, to take whatever role they wish in this referendum. My party leader has indicated that the Fianna Fáil Parliamentary Party is calling for a "yes" vote and supporting the Government. On the other hand, he has properly and correctly made provision for those people who might have a different point of view. I support that provision. The position taken by my party leader in this matter is indicative of good quality leadership.

With the exception of a reform of the law of nullity which the Government, for reasons best known to itself, appears reluctant to tackle and proposals to provide for lawful remarriage following lawful separation, the present law is a realistic reflection of the needs of citizens in a modern pluralist society. If this is taken as a party political scoring point then so be it. However, those who are familiar with my career as a Member of this House will know that my criticism of the failure of the Government to act in certain areas has never been confined to other political parties and never will be.

I hope this debate will lead to an endorsement by the electorate of the need to allow separated persons the legal right to remarry, while underlying the pre-eminent role of the family in the social fabric of our nation. While I realise my unequivocal belief that remarriage is a fundamental right is not shared by all Members of the House or all of the electorate, my understanding of justice and my belief in fairness and compassion allow me no other view.

Critics of the proposal to remove the constitutional ban on divorce say that marriage will never be the same. They say that the introduction of the right to remarry will cause marriages to break down and discourage people in marriages which are under strain from making a proper effort to keep their marriages together. We are all familiar with the floodgates argument and we know that religious organisations which forbid divorce will, in exercise of their pastoral duty, reiterate their attitude to marriage, their abhorrence of divorce and their concerns about the effects of divorce on society in general. I accept that a church — I am not referring exclusively to the Catholic Church — has a duty to direct the attention of its members towards its appraisal of the implications of marriage breakdown. This duty will extend to giving advice to members about where their duties as such lie and it may even embrace an outline of the sanctions which default may entail. However, no organisation, no matter how large, powerful or earnest, is entitled to dictate to persons other than its members on how they should lead their lives. The Government must be mindful of the many strands of opinion in the country. In fairness, most religious organisations have clearly acknowledged that regardless of their stance the Government must legislate as it sees fit.

The Government must do its best to include all citizens within the embrace of its laws. When provisions in international law are not fundamentally consistent in a material way with the mores of our nation then the Oireachtas is precluded from enacting or upholding any law which is repugnant to that law. Our Statute Book is filled with laws which did not orginate in the Dáil or Seanad. Our membership of the European Union involves us in an extensive regime of economic, social and political legislation which has revolutionised the rights and expectations of our citizens and dragged Ireland — many say reluctantly — into the 1990s. An Irish farmer may seem to have little in common with a German factory worker but the legal framework which regulates their lives is remarkably similar.

Our membership of the European Union and other international organisations such as the United Nations and the Organisation for Economic Cooperation and Development has required us to take real and practical account of the standards of conduct which apply to the business and social affairs of other nations. Other influences such as the ever increasing powers of the media, improvements in the standard of living and the eschewing of traditional concepts of power and authority inside and outside the home have made the world in general and Ireland in particular radically different today from the way they were in my youth. The seemingly endless array of new technology and the sheer scale of the availability of information are taken for granted, particularly by young people, while the hunger for more technology and information seems to be insatiable.

In this context the waning interest in the political process among young people is not a great surprise, particularly when one considers that many young people believe the political process has little relevance to them. Studies of the pattern of voting in recent national elections have indicated a serious decline in the number of young people who voted. This year many thousands of young people are entitled to vote for the first time while many more thousands who are entitled to vote have never voted. Unfortunately, a number of categories in our society do not rate high on the scale of human values while politics and politicians rate lowly. It does not give me any pleasure to say this as I have the greatest respect for the profession of politics and the greatest personal respect for politicians of all parties. These young first time voters may not look to politicians for leadership while those who do so may think they are not getting it. Everyone who is entitled to vote should exercise that right in this referendum.

This referendum is not about Fianna Fáil versus the other parties or parties of the left versus parties of the right. Rather it is about people's lives. It is a personal matter and if the decision is to reflect the view of the majority then every voter must tell us, as legislators, what laws they want, no more or no less.

People who have firm opinions will exercise their right to vote. The pro and anti divorce lobbies will be out in force, particularly on polling day. However, these people are not in a majority. Most of the electorate are not involved in either movement and should not be tempted to leave the issue to those on opposite sides of the debate. There are many people in the middle ground, the so-called silent group — I am not saying they are the majority on this occasion — who have not voiced their opinion. The only place they express their opinion is at the ballot box, which is as it should be. These people should exercise their franchise, whether it is for or against divorce.

The vast majority of the electorate are deeply disturbed not about the issue of divorce but about marriage breakdown. The Government's proposals are a fair and reasonable reflection of the requirements of the people to ensure that the long-term stability of the family in Irish life is promoted, fostered and protected, having regard to the realities which no responsible and reasonable person can ignore.

I wish to share my time with Deputy Trevor Sargent.

I welcome this Bill and applaud the Minister for Equality and Law Reform, Deputy Taylor, for bringing it before us in line with the agreement in the programme for Government. The timeframe for the introduction of this Bill is much the same as that agreed with Fianna Fáil. I also welcome the many support measures the Minister has put in place to date. I support the points made by Deputy Andrews who has a genuine commitment to people's right to remarry. I urge all citizens, whether for or against divorce, to exercise their franchise on polling day.

I and many other Deputies would like to have had a simple black and white provision deleting the ban on divorce from the Constitution. However, we have to deal with the realities that concern people, and we must show leadership. That is why I am prepared to fully support the provisions before us.

I consider this a balanced text. It establishes the right to dissolve a marriage that has irretrievably broken down and allows the separated spouses to enter into new lawful relationship if they so choose. It thereby enhances the human and civil right of all men and women to the pursuit of happiness. I consider this right, which is stated in many constitutions, as the supreme objective of all societal organisation.

At present between 70,000 and 75,000 marriages have broken down irretrievably, as defined in the text before us, and we have to deal with that. On the other hand, the provisions provide for a period of four years living apart prior to the institution of divorce proceedings. This ensure that there will be no question of passing fancies resulting in divorce and that so-called quickie divorces will not be possible. That is the context of our discussion.

The background to this is equally impressive in the manner in which we have dealt with it since 1986 when the previous divorce referendum was defeated. Nineteen pieces of legislation have been put in place to deal with the nightmare of marital breakdown and protection of the family. That is a substantial body of legislation. It provides for legal assistance with more funding, the provision of more legal centres, the appointment of extra judges, easier access to the courts and civil legal aid for those on social welfare and, on a means-tested basis, for people who are employed. It includes a major programme of family law reform covering provisions for the maintenance of children and spouses, the distribution of property, succession rights, maintenance of all existing social welfare entitlements and the updating of a host of other relevant items.

Most important of all, and something we perhaps do not discuss adequately in the debate on marriage breakdown and divorce, is that the institution of marriage itself is very much under threat from other factors at present. This Government and the previous one have gone out of their way to strengthen the institution of marriage, but the number of marriages has declined steadily since 1986. In 1986 the number of marriages was 18,573. In 1994 it was 16,297. That is a substantial decrease. Twenty per cent of first births now take place outside marriage. In my constituency in the north inner city over 50 per cent of first births take place outside marriage. There is a crisis in marriage, and it certainly is not the result of divorce because divorce is not in existence. Lone parent births in Ireland have now reached a higher percentage than in any other of the European countries. That is a sociological factor that has not been fully examined and which requires careful examination. Certainly divorce is not the cause.

The institution of marriage is under threat, but the present Government has put in place strong measures to protect it and to protect the family. The Family Mediation Service has been put in place and given extra funding; the marriage counselling organisations are being substantially funded this year — £.75 million has been allocated, and they are being strongly promoted; the legal aid and legal advice centres have been extended to every country in Ireland and have been allocated substantial resources, an increase of about 130 per cent this year; the age of marriage has been raised to 18 years and three months' prior notice must be given of an intention to marry. This means that marriages will not be thoughtlessly entered into and people will be more mature when they marry. All of that is a necessary build-up to ensure the stability of marriage. I believe that all right-minded citizens who are genuine in their compassion for those whose marriages have broken down, who are concerned about the right of every citizen to the pursuit of happiness, and who embrace a pluralist society will welcome this legislation and vote "yes" to the amendment to the Constitution on 24 November.

There are specific provisions in both programmes for Government, the 1993 and the 1994 programmes, which I would like to put on the record. It should be remembered that all parties in the House, with the exception of the Progressive Democrats and the Green Party, have sponsored one or other of those manifestos. In the 1993 document it is clearly stated in the section on women's rights that changes in legislation will include:

A major programme of family law reform, culminating in a referendum on divorce by 1994 — we have missed that by about a year — modernisation of the law of nullity; placing a monetary value on women's work in the home for the purposes of property distribution; extension of barring order legislation; legislation to give each spouse an equal share in the family home and household belongings; increase in the age of marriage to 18; enhancement of the rights of parties in non-marital unions;

Every iota of that has been put in place and now, in 1995, we are putting forward the referendum.

This Bill is enhanced by the present programme for Government which reads, under the simple heading of divorce:

A referendum to remove the constitutional ban on divorce and remarriage, on the basis of irretrievable breakdown, will be held during 1995. The Government and the Parties will recommend a Yes vote in the referendum.

In advance of the referendum a comprehensive paper will be published indicating the text of the amendment proposed by the Government, and addressing issues such as:

—the protection of children;


—social welfare;

—inheritance laws and pension entitlements.

At the same time we will complete the steps necessary to ensure that:

all dependent spouses and children are fully protected; the Family Mediation Service is strengthened and expanded; the family courts are strengthened.

That programme has been put in place. It is now sponsored by Fianna Fáil, Fine Gael, the Labour Party and the Democratic Left. That is why I feel the Progressive Democrats are the only party playing politics with this. On the one hand they say they are not happy with the four year living apart provision and would prefer a simple deletion of the ban on divorce. Many others would also prefer that. However, the Progressive Democrats want to have their cake and eat it. Because they have not got exactly the text they want they will oppose it but, once the Bill is passed, they will support the referendum. One could say that Fianna Fáil is adopting the other position, that it will accept it in the House and allow a free for all when the text is passed. Given the remarks by the leader of Fianna Fáil, I believe he, like Deputy Andrews is genuinely committed to ensuring the divorce referendum is passed. I am sure he and his party which agreed a manifesto which included the introduction of divorce proceedings will travel the highways and byways to canvass for a "yes" vote on 24 November. However, I urge against the Progressive Democrats confusing the issue and seeking political expediency not so much by taking the high moral ground but to gain some high profile publicity in its rather spurious proposal to get ten people to call for a division on the issue.

The Deputy should remember what his leader said about that two and a half years ago.

If the leader of the Progressive Democrats is serious about getting the referendum passed, we should show a united front. The Progressive Democrats indicated its strong support for divorce legislation and for a constitutional referendum on divorce. It should accept the reality and the balance in these provisions and support the Government in them.

The ban on divorce was introduced in the 1937 Constitution. The 1922 Constitution did not have such a ban, and neither did the Brehon laws. The ban was introduced when perhaps there was very conservative thinking on social matters, a short period after the Eucharistic Congress in 1932.

Debate adjourned.