Report of Joint Committee on Marriage Breakdown: Motion (Resumed).

The following motion was moved by Senator Dooge on Thursday, 27 June 1985:

That Seanad Éireann welcomes the Report of the Joint Committee on Marriage Breakdown, urges the widest possible debate on its recommendations and calls on the Government to consider the holding of a Referendum on Article 41.3.2º of the Constitution.

Debate resumed on amendment No. 1:

To delete all words after "Government" and substitute the following:—

"to hold a referendum on Article 41.3.2º of the Constitution within the lifetime of the present Government".

—(Senator Ross.)

Professor Dooge

Before the debate on item No. 1 was adjourned I had talked about the part of the motion that dealt with the welcoming of the report of the joint committee. I had indicated that there was a general welcome for the report, that there was minor criticism and that it was proper that this minor criticism should be made in the House on receipt of this report. I had then talked about what was meant in the motion by having the widest possible debate. It should cover the nature of civil marriage in Ireland, it should cover the protection of marriage in Ireland, it should cover the question of non-divorce remedies for difficulties in marriage and it should grapple realistically with the problem of divorce as a solution to the irretrievable breakdown of marriage.

At the time of the adjournment I was discussing the question of the protection of marriage and, in particular, the appropriate preconditions for civil marriage and I was dealing in particular with the question of the age of marriage. On that point I had covered most of the points that had arisen during the debate. I only want to supplement that by echoing what was said by Senator Bulbulia and Senator Durcan, that there should be an immediate implementation of this legislation. If I interpret the debate a right number of Senators felt that this could have been dealt with previously in legislation in regard to the age of majority and that there is no excuse for any further delay.

Continuing on the line of the protection of marriage there was a general agreement in this debate in regard to the value of premarriage counselling that had already been instituted in this country and of the way in which this development could be extended. I do not think there was any dissenting voice here and I see a clear consensus arising from our debate.

There was emphasis in the debate on certain aspects of how this could best be solved. Senator Bulbulia mentioned a number of criteria, particularly that such premarriage counselling should be multidimensional in the fullest sense of the word. It should not be unduly concentrated on the question of denominational instruction but neither should it be unduly concentrated on the question of the economy of running a home nor unduly concentrated on the sexual aspects of marriage. We would all agree with this.

Senator Bulbulia mentioned also that premarriage counselling for a number of years ahead will have to supply for the deficiency in our educational system, to which I have referred, the fact that Irish education at all levels is highly deficient in educating people for modern life and in particular for educating people in the development of meaningful personal relationships.

There is not only the question of premarriage counselling; it is the question of marriage counselling in times of difficulty. Here there was a large measure of agreement among the Members of the Seanad who contributed to the debate.

Senator Catherine McGuinness drew attention to the results of the experience of marriage counsellors who gave evidence to the joint committee about the recurring factors that lead to difficulties in marriage such as the unduly high expectations that some people have of marriage. It seems in this regard that, in swinging away from what Senator Bulbulia called the mythical norm and Senator Ferris described as made marriages based on one and a half personalities where the expectation particularly on the part of a woman was quite low, we have, under the influence of ideas of romantic love resulting in marriage, swung too far in the other direction so that people now entering marriage, particularly people entering marriage at a relatively young age, have unduly high expectations.

Senator McGuinness also mentioned the problem within marriage of the question of a communication gap. This is a very real problem. None of us, if we are really honest about our own marriages, could stand up in this or in any other forum and say that in no way and at no time was there a communication gap in our marriage. I humbly confess that in my own marriage which I find satisfactory, and I trust my wife also finds to be satisfactory, there are communication gaps from time to time. Leading the life that I do as an academic and a politician, I can make the excuse that I am too tired to talk. We must recognise this problem of communication. It is a problem in all marriages. But there are some marriages in which this problem, which is met and hopefully surmounted in most marriages, can become pathological and lead ultimately to a complete withdrawal and become an accelerated process so that this gap in communication becomes wider and wider until it takes on the dimensions of the Grand Canyon.

Senator McGuinness also mentioned the question of the recurring factor of unsuitable choice. How one tackles this problem I do not know. Here we have a very real problem. Senator B. Ryan said that our social conditions have changed, that young people want to choose for themselves, that they are no longer inclined to listen to their parents who may be able to spot an inherent unsuitability. We live in an atmosphere in which parental advice, which at one time was paramount and all-decisive, now becomes a matter hardly to be considered at all.

These are the recurring factors summarised by Senator McGuinness in this debate. How do we counter them? The answer is, as Senator Bulbulia mentioned, that these problems are of such a nature that the only thing that will solve them is professional counselling of the highest quality. I am quite sure that by professional counselling she did not mean that this had to be a full time paid activity of the people concerned but rather that it is not a matter for inexperienced people, not a matter for untrained people. It is not a question where goodwill is enough. The territory that is involved here is so dangerous and so full of pitfalls that nobody but a person who has the three qualities of aptitude, of training and of experience could possibly cope with what is involved.

In summary, there has been support in the Seanad for the recommendation of paragraph 3.2.5 of the joint committee report in regard to the obligation of the State. The report defines the obligation of the State:

To ensure that there is an easily accessible and effective counselling service.

No matter how quickly we act, no matter how well conceived are the attempts to protect marriage, no matter how many resources can be found from somewhere to finance these efforts, there will, of course, remain a residium of cases where there is a breakdown of marriage. It may well be that the greatest efforts we can make in regard to the protection of marriage will do no more than to slow down the increase in this problem. We must look to the question of what are the remedies in regard to the position where all the preparatory education, all the pre-marriage counselling, all the post-marriage counselling is ineffective in preventing a breakdown of marriage. I dismiss as completely untenable the proposition that nullity and the extension of nullity can deal with this problem.

Mrs. Bulbulia

Hear, hear.

Professor Dooge

That is not to say that a reform of our law of nullity is not long, long overdue. It is not to say that we should not immediately proceed to reform our law of nullity. Let us not think that by broadening the law of nullity, by saying that we can broaden the law of nullity in the manner in which the ecclesiastical courts have broadened the concept of nullity and that we can solve the problem. Not even if we stretch the concept of nullity to the extent that it has been stretched in past centuries will we solve this problem.

In doing some background reading in connection with the whole problem I was interested to learn that at some time in the thirteenth or fourteenth century there was a decree of nullity granted in the English ecclesiastical courts on the basis that the marriage was null and void because of sexual intercourse before marriage between the husband and a third cousin of the wife's. It may be that some Members of the Seanad think that we can solve our problems by stretching nullity to this degree. I do not believe, even if we use all the ingenuity of the medieval Church, unreformed either by Wittenburg or Trent, that we will manage to solve our problems in this particular way.

Let us be quite clear that that does not absolve us from an obligation to clear up the ridiculous mess which is the legal position in regard to nullity in this country today. I would like just to echo some point made in the course of the debate in regard to the question of nullity. For example, Senator Catherine McGuinness asked what advantage is there from the point of view of the children, whom so many of us put as a prime consideration in these matters, rather than telling them that a marriage is no more, to tell them that the marriage never was. What possible advantage is there? How is the trauma reduced? How are the effects on the children reduced by following the road of nullity rather than following the road of dissolution? Senator Jack Harte also followed up this line by saying that this was the approach to the problem that was least complimentary to all the parties involved.

There are a number of other points that were brought out in the debate and one that was brought out in particular was mentioned by Senator Bulbulia, Senator McGuinness and Senator Durcan this evening, that is, that the situation in which we now find ourselves of uncertainty in regard to the law of nullity is alone of itself a reason for action in this regard. This is not the only thing that must be done. There are a number of other points that were raised during the debate, the question of the expense of nullity, the desirability of ensuring that ancillary questions and above all, the question of legitimacy, must be handled in a reform of the law in this particular regard. I can say in this concluding speech, without any danger of contradiction, that there is general support in Seanad Éireann for the committee's recommendations in regard to nullity and a plea from the Seanad that these recommendations should be implemented and that action should not be delayed.

I turn then from the question of nullity to the question of separation. We have here this traditional, legal form of separation with the traditional grounds for separation and the traditional defences. The 1983 report of the Law Reform Commission recommended the extension of these grounds to include desertion, breakdown and separation and also recommended a reduction in the admissable defences against such an action. The joint committee in their report recommend that separation should be based on the irretrievable breakdown of marriage and that the proof of irretrievable breakdown should be on the basis of certain facts.

I mentioned in my speech opening this debate that I thought that this particular paragraph, in which these grounds were spelt out by the committee, was one of the more important paragraphs of the committee's report. I regret that it was not taken up in the subsequent debate except by the Minister of State and by Senator Mary Robinson, who felt that the Minister of State was confused on the issue. I will be dealing with that point in due time.

I just want to raise in regard to separation one particular difficulty that I see and one reason why I feel there is need to probe some of these areas further. The case is made in the joint committee report, and was supported strongly by Senator Mary Robinson in her contribution, that in any proceedings for separation ancillary matters should be fully dealt with — matters such as disposal of property, custody of children, access to them, the question of maintenance. At the same time a number of Senators — including, I think, Senator Robinson — were arguing that we should seek to remove the adversarial element from such proceedings. I see a very real difficulty here. If we go over, as Senator Brian Hillery suggested, to an inquisitorial rather than an adversarial approach to separation — the same arguments, of course, apply to the question of divorce — it seems to me it is very difficult to do this, to remove all the grave disadvantages of adversarial proceedings, which I admit, if we are to bring in the ancillary matters. Because it seems to me it would be extremely difficult to settle question of the disposition of property, question of custody and access, the question of maintenance and questions of barring without reverting, whether we wish to do so or not, to an adversarial atmosphere if not to adversarial court proceedings.

I felt there is a very real difficulty here, and this is a point which the Minister of State and those responsible should consider with care.

If we are to accept what the joint committee say on pages 49 and 50 in regard to the legal definition of irretrievable breakdown as a basis for separation, and as indicated later in the report, as being the basis of the approach for divorce legislation, here also there are difficulties that we must frankly face if we are to solve this problem. When, 18 years ago, I was among those on the ad hoc committee on the reform of the Constitution who stuck their necks out on divorce it was possible at that time to talk about the immediate necessity of removing the constitutional ban without talking about the question of subsequent legislation. That is no longer the position. I do not think we can talk any more about removing the constitutional ban and then saying when that is done let us think again. We must face the problem. I hasten to assure the House that when I say that I do not have my own piece of legislation. I do not have another Bill to throw on to the table for the sake of discussion ——

Mr. Ferris

We do.

Professor Dooge

——but I raise the point that we have to be clear regarding this matter exactly how we will proceed. It would be wrong for us to go into a referendum campaign for the removal of the bar in the Constitution — and I am on the record for 18 years to the effect that it should be removed — without being clear and without making it clear to the people who will make this decision what is to be put in its place both in regard to the Constitution and in regard to at least the type of legislation. Here there is an area of quite considerable difficulty. I want to pay full tribute to the joint committee for what they set out on pages 49 and 50 in regard to a possible basis for separation. In separate paragraphs they gave ——

An Cathaoirleach

May I interrupt. There is a division in the other House.

Professor Dooge

With the permission of the House, I will continue the debate as I am about to defend the Minister of State: it may save her embarrassment. Again, I wish to pay tribute to the joint committee for grasping this particular problem. In 7.3.8 in paragraph (1) they give irretrievable breakdown as the one overall ground for the granting of the decree of judicial separation. It is clear from the reading of the later part of the report that they consider this also should be the approach in regard to divorce.

In paragraph (2) they say in considering whether or not in the case where 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 facts. The Minister of State, Deputy Fennell, adverted to this and indicated in her contribution that she felt there were difficulties in this regard. I would like to quote exactly what she said. I think this is important in regard to the criticism that Senator Mary Robinson made. I think it is very valuable that criticism was made, if only because it gives me a chance to reply. I am quoting now from Volume 108(12) from the bottom of column 1184 and the top of column 1185. The Minister of State, Deputy Fennell said:

I am not suggesting that any legislation introduced here should proceed one way rather than the other. I am merely suggesting that, in any consideration that may be given to the matter, we should not lightly assume that the question is settled.

What she is referring to here is the question whether, by accepting irretrievable breakdown as the sole ground, we have got away from the question of fault based divorce, and her contention there was that in fact the question is still not settled.

Senator Mary Robinson, in column 432 of a subsequent debate, said that what the Minister had said indicated a very high degree of confusion. She appeared to interpret what the Minister said as indicating that the Minister of State would not accept any change in relation to the grounds for obtaining a decree of judicial separation. I think Senator Robinson can accept, even if that appears to be the force of what the Minister of State was saying, that indeed is not her position and that indeed she is working actively in regard to this particular point.

Mrs. Robinson

I would be very glad to see that. I quoted the passage which appeared to indicate that she did want to retain fault for judicial separation. If that is not true, I would be very glad to hear it. The problem is that faults require proof of faults and therefore parties could be separated for ten years or even 20 years but if they could not establish a matrimonial fault then they could not get a decree of judicial separation. I would be very glad to know that there would not be any problem there.

Professor Dooge

I cannot reassure the Senator that there is no problem but I also wish to assure the Senator about the origin of the confusion in this regard. She indicated that the Minister of State was confused thereby implying that in the joint committee's report, and in the UK legislation on which it is based, everything is clarity. I want to make the point now that the confusion arises from the nature of trying to combine the question of the sole principle of irretrievable breakdown and the question of its proof during certain facts.

Mrs. Robinson

I do not accept that.

Professor Dooge

So, I must develop my case at some length. If we look at what the joint committee say in paragraph 7.3.8.1. and look at what is said in section 1 of the 1973 statute in the UK we find that they are virtually identical: irretrievable breakdown of marriage is the sole ground. If we look at paragraph 7.3.8.2 of the joint committee report and compare that with section 2(1) of the UK Act of 1973 we find that they are almost identical. There are six grounds in the joint committee's report; there are five grounds in the UK Act of 1973. The sixth that is in the joint committee's report is an omnibus clause, which I will quote for the sake of clarity. The sixth fact in the second paragraph 7.3.8.2. is that "such other facts and or reasons exist or existed which in all circumstances make it reasonable for the Applicant to live separate from, and not cohabit, with the other spouse". In other words, to the five facts that are mentioned in the UK statute a sixth omnibus clause has been added. If we reach — and I hope will reach without undue delay — the stage of legislation, I wonder how easy a ride such a provision would have on the Committee Stage of the Bill. I think this adds very little to what has been said before and it might be argued against on the grounds that it would be dangerous in legislation for the want of certainty.

Let us look, then, at the other five grounds. Rather interestingly, they are the same. They are cruelty, adultery, desertion, one year's separation with consent and three years' separation. These are the grounds. These are the same grounds, except the differences in the period of separation as those in section 2(1) of the UK statute of 1973. There is an interesting difference, that they are not quite in the same order. In fact, in the joint committee report cruelty is put ahead of adultery. I am not quite sure whether this is a value judgment or whether it merely represents an attempt to be slightly different.

Mrs. Robinson

We put the existing grounds first and then add some new ones.

Professor Dooge

Perhaps. Let us ask ourselves what is the position. If there is confusion arising from this where does it arise from? The first element of confusion here is that in the UK statute of 1973 those five grounds apply to separation. Subsection (2) applies to separation, but subsection (1) does not. Irretrievable breakdown of marriage is not part of the basis of law for separation in the United Kingdom. If it is to be imported into separation as well as divorce then there must be a justification for this since it is not present in the particular model.

It is far more important, and I readily admit this, to consider these two questions taken together — the sole ground of irretrievable breakdown of marriage and the facts which could be used to prove this — to take these together as being the basis of divorce, which is also the position in the UK and which I think we can implicitly say is a recommendation of at least the majority of the joint committee in regard to possible divorce legislation in this country.

The Minister of State said when we debated this question that there was an element of inconsistency in these two provisions, that there is an element of inconsistency in talking about irretrievable breakdown of marriage as being the sole ground and then treating these facts as being the only basis on which it can be proved. It may well be that Senator Robinson disagrees with that.

Mrs. Robinson

I do.

Professor Dooge

Then I can only rely on such authorities as are available to me. I take as my first authority Cretney on the Principles of Family Law, the third edition published in 1979, and I trust that Senator Robinson will say that I am at least reasonable in using Cretney as an authority. Quoting from Cretney on page 101 it says in reference to the Divorce Reform Act, 1969:

The Divorce Reform Act, 1969 introduced the principle that "the sole ground on which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably."

That principle has been taken over in the joint committee's report. Cretney goes on to say:

The Act thus entirely altered the conceptual basis of divorce; there is now one ground, and one ground only, on which the court has power to dissolve a marriage, and that is that the marriage has broken down irretrievably.

So far, so good. But what does this mean in practice? What happens when a court comes to deal with this particular problem? I continue to quote from Cretney on page 101:

However, the statement that breakdown is the sole ground for divorce is, taken by itself, somewhat misleading, since the Act is not wholly consistent in pursuit of this policy.

When the Minister of State points out that there is an inconsistency in paragraphs 1 and 2 of what is said in the joint committee report she is in line with Cretney on page 101 which says that there is an inconsistency in the 1969 statute which was essentially re-enacted by the 1973 statute and which is incorporated in the joint committee report.

There is a very real difficulty here. I do not think that the Minister of State should be criticised for drawing attention to the difficulties because those of us who are interested in the question of ensuring, first, the removal of the constitutional ban and, secondly, the adoption of realistic divorce legislation are serving our own purpose by ignoring these particular difficulties. In order to back up——

Mrs. Robinson

What difficulties?

Professor Dooge

Let me not answer for myself. I would hesitate to put myself as a legal authority against Senator Robinson. Therefore, I have to rely on others. I wish to quote first of all from Lord Reid, who had a distinguished career as Solicitor General for Scotland, afterwards Lord Advocate. He, in discussing the Divorce Reform Bill, 1969, in the House of Lords — and I am very happy to quote a House of Lords debate in this debate — spoke as follows. I am quoting from — I was going to say the official record, but the Clerk would correct me afterwards; it is not the official record, it is the Hansard of the House of Lords, which is not the official record. In Hansard of the Lords for 13 October 1969, Lord Reid, an extremely distinguished lawyer and a Lord of Appeal, spoke as follows. I am quoting from paragraph 1274 of that date:

My Lords, I do not desire to detain the House for long, but I should like to make one or two comments on what I think are the excessive claims made by the noble Lord, Lord Stow Hill.

In the first place he says that this Bill will replace the present system by a new one. With all deference, it will do nothing of the kind. It is perfectly true that if we read only Clause 1 — paragraph 1 of our report — it does indicate that. But fortunately — and I think we have to thank the Law Commission for this — the promoters of the Bill have been persuaded to accept other clauses in the Bill which virtually deprived Clause 1 of all effect and 95 per cent of the cases which come before the divorce court will go on in exactly the same way and have exactly the same result as if this Bill had never been passed. We have at least that to be thankful for, because if this Bill did what Clause 1 says it wants to do it would indeed be a disaster.

Mrs. Robinson

I do not see any problem with that but I have not any opportunity to say why.

Professor Dooge

I listened patiently throughout this debate. There is just one other opinion that I would like to quote on this. I am quoting here from Rayden's Law and Practice in Divorce and Family Matters in All Courts which, again, Senator Robinson will accept as a reasonable reference. Here, in regard to the question of breakdown as being the sole ground for a divorce, in a note Rayden quotes the opinion of Sir Jocelyn Simon, later Lord Simon, in the Riddell lecture, 1970. I should point out that Sir Jocelyn Simon had been at the time of the delivery of this particular lecture for some eight years the President of the Probate, Divorce and Admiralty section of the Queensbench — the equivalent of our High Court. What Sir Jocelyn Simon had to say in regard to this section 1 (1) of the 1969 Act, which is the same as paragraph 1 of 7.3.8 of the joint committee report, was that “it is of no real legal significance”. That is what the man who was the president of the division concerned with these cases said in regard to this principle. I will go on to quote “partly because section 1 (2) confines irretrievable breakdown to one or more matters set out in that subsection and partly because breakdown is not really a matter that a court can try”. I am not saying that these are authoritative opinions but I am saying that these opinions by experienced persons are certainly sufficient justification for the opinion expressed by the Minister of State——

Mrs. Robinson

No, it is not. This is different.

Professor Dooge

——in the debate in this House that the matter is not a closed one.

I want to move now to the question of divorce as a remedy. We have in the report that is before us, a summary of the arguments for divorce legislation and the arguments against. If we look at the listing of them and perhaps prune out some of the ones that are really contained in others, we find here in these arguments a parallelism — not really a parallelism but an antagonism — that, while one is considered an argument for divorce, the obverse of it is considered an argument against.

That is an indication of the difficulty of the debate on which we are now entering. For example, it is said in the report, argument (c) for divorce is that absence of divorce has not protected marriage. Argument (c), against divorce, is that it would reduce the protection of marriage. We do have this antagonism. We have the argument for, that breakdown affects children; we have the argument against that the effect of divorce on children is a negative one. So, if we look at these, it is not just a simple matter, and I think we can slip all too easily into what would become a divisive debate, what would become a debate of people shouting at one another, people coming into the debate with preconceived notions rather than open minds, that if we go into that situation, then in fact the movement for the removal of the constitutional ban, the movement for the enactment of divorce legislation will be lost and that the tragic position that already exists will only intensify.

I want to continue in the remainder of what I have to say to deal largely with that particular point. I want to recall something that I just touched on earlier. If one takes the viewpoint that divorce is a basic human right, then certain conclusions immediately follow. If one takes the opposite viewpoint that divorce is impossible because it is against the natural law then one reaches another conclusion. I would suggest that a debate between people who take these two views is going to lead us nowhere. If the debate were to be conducted as a debate between these two contrasting views, then indeed the debate would be divisive and endless. It is interesting in looking at the evidence which was brought before the committee that the natural law argument was not really used and in fact only came forward in the evidence of one particular group. Indeed, to show that that particular point of view is not completely dead I would like to place it on the records of the House——

Mrs. Robinson

Deputy P. Flynn looked after it on the committee.

Professor Dooge

I cannot find it, so I am reduced to paraphrase. It was among the evidence of the Irish Family Research League who said that the only function of the legislator was to enshrine in legislation the Catholic view of marriage — at least the traditional view was represented. I am glad that it was so that I can, on behalf of my group here, repudiate that particular viewpoint. I hope in any differences that do arise in the debate here or in the debate later that at least we will not be accused of taking this attitude.

Is divorce a basic human right? Among a number of Senators who contributed to this debate, that assertion was made. Senator Michael D. Higgins said that divorce was a human right and he drew an anology with the right to eat, the right to life. Senator Jack Harte asserted that divorce is a basic human right. Senator Robb indicated in his contribution that under the various conventions on human rights, under the UN and in the European sphere, that divorce is acknowledged as a right. Senator Stephen McGonagle said here this evening that divorce is a right, that the individual has a right to divorce and this is basic Labour policy.

We should consider this for the moment. It is very important for me to consider this point because I think it is important to a number of members of the Fine Gael group in the Seanad, whose commitment to the question of constitutional change in divorce legislation is not in doubt. We may well agree with the conclusions of those members of the Labour Party and Independent Senators who approach this problem as one of basic human rights, but we cannot agree with the argument. I want to make that absolutely clear. We do not accept divorce as a basic human right. We may accept divorce as a necessity in the interest of the common good under the present social conditions of this country. But that is a very different thing from acknowledging it as a right.

It is important to say this, not just to be different, because I would say to those who have been approaching the problem from this point of view — and not all members of the Labour Party in this House and not all Independents in this House approached it from this viewpoint — that if you continue to use this as the basis for your argument I do not believe you will ever persuade in a referendum situation the majority of the Irish people to agree with you. I do not believe that advocates of change who are following this particular line are serving their own cause by using this argument.

Since this is central to the divergencies that exist between the members of Fine Gael and members of the Labour Party, because of what I think is the importance of this point for the possible success of movement in this regard, I want just to deal with this problem for a few moments. First of all, let us ask ourselves is there a basic right under any UN convention in regard to divorce. I intend to quote from the International Covenant on Civil and Political Rights of 1966. In Article 23 there are four paragraphs. In paragraph 4 it states as follows:

State Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of its dissolution, provision shall be made for the necessary protection of any children.

I ask the question: can we base a right to divorce on that particular paragraph? I suggest that we cannot because this is concerned with the rights of individuals when dissolution takes place. If we look at the remaining three paragraphs of Article 23 of the 1966 Convention we find that the right to marriage is specifically mentioned outside of and anterior to paragraph 4. It says in paragraph 2:

The right of men and women of marriageable age to marry and to found a family shall be recognized.

Mrs. Robinson

The right is the right to remarry.

Professor Dooge

People of marriageable age have the right to marry. It may well be that this is a difference of interpretation. All I can say is that the arguments which are based on Article 23 of 1966 as of a time of 9 p.m. on this day do not convince me.

We turn then to the question of whether there is a human right under the European Commission of Human Rights. While this matter has not been fully determined there has been a finding by the European Commission on Human Rights of 5 March 1985. As of 9 p.m. on this date and as of 10 p.m. when this House will divide the position of the Commission does govern.

Mrs. Robinson

I will grant you that.

Mrs. Bulbulia

They are working on it. Just you wait.

Professor Dooge

Paragraph 88 states:

The Commission first observes that the right to divorce and subsequently to remarry cannot be derived from the plain wording of these provisions. These are the ordinary meanings and the context of articles 8 and 12 viewed in the light of the object and purpose of the convention indicate that they can be interpreted as opposing an obligation on State parties to provide for the dissolution of marriage ties.

What I am essentially saying is that as of this moment if you want to convince me and, I suggest, if you want to convince a majority of the voting Irish public, which is the critical thing in this issue, there should not be undue reliance on such arguments. As I said before, if in fact people can be convinced that divorce is a basic right then it does not matter how few are affected. If it is a basic human right it must be available to the few. If you believe that divorce is an intrinsic social evil, legislators would have the duty to resist it in the interest of the common good. I find myself and members of my group find themselves in the unfortunate position of not having a handy ideology to support us, an ideology of either one side or the other to support us in grappling with this problem. Many of us believe that it has already been established that the balance of the common good, which as Senator Lynch said this evening, is the objective of the Constitution and the objective of all legislation, does indicate that the Constitution should be amended and that divorce legislation should be introduced. It is on that basis and it is not on a question of black or white — no matter what way you define the black and what way you define the white — but on the basis of a balance it is an extremely difficult thing to judge. Senator Seán O'Leary was right in his contribution in which he spoke of his disappointment that the joint committee had not grappled with this question of what is the size of the visible problem, what is the size of the latent problem. It reinforces greatly what is said by a number of Senators, notably by Senator Catherine Bulbulia, and which I mentioned myself in my opening speech: that there should be an end to that nonsense of the present form of census returns. Senator Bulbulia also mentioned that there was a great need for research in this area.

This is a critical part of our problem. We must be able to approach this problem. I am stating my own position. I feel it is the position of many Members of the Fine Gael group in the Seanad and of many members of Fine Gael throughout the country that this is not a matter of something that is a basic right, that it is not a matter of something that is by definition a social evil, but that it is a matter of a question of a careful balance.

Mrs. Robinson

But for 18 years you believed we should change the law and remove the ban.

Professor Dooge

I agree, but I think we are a good deal further on. Senator Robinson has now reminded me of what happened in regard to the 1967 committee on the reform of the Constitution. That committee made a number of recommendations, some of which were unanimous, others were not. That committee made a unanimous recommendation in regard to constitutional change on the prohibition of divorce. It also made a unanimous recommendation in regard to the amendment of Articles 2 and 3 of the Constitution. I would like to say 18 years later that if the political parties and the Government of the day, had proceeded on those two issues this country would be a damn sight better off in both respects.

Mrs. Robinson

Hear, hear.

Professor Dooge

What did happen was that the question taken up was an issue on which the committee was not unanimous — the question of the abolition of PR. We had this campaign mounted. We had a referendum campaign. I suppose we had what could be called a divisive debate in regard to this and no change in the Constitution. Are we going to repeat history by not seeing clearly what is the way ahead? We are in the danger of taking an issue on which the committee was not unanimous, which would lead to a divisive debate and which might well, to my disappointment, result in a situation in which the Constitution was not changed.

I believe that the situation now is that there is a need for some further debate. Senator Michael D. Higgins talked about the fact that we should proceed immediately to a question of decision because the important thing was not what was said but that the silence has been broken. I would suggest at the risk of mixing metaphors, that there are rings of silence. The silence has been thoroughly broken here in Leinster House. In a sense the silence has been broken outside Leinster House. But I do not believe that the real issue have been grappled with. I believe that the proper parameters for debate are the questions of being quite clear as to what is the nature of civil marriage in Ireland, being quite clear in regard to what is the nature and extent of marriage breakdown, being quite clear about what type of divorce legislation we wish to introduce. If there is such a debate and if we avoid coming into that debate from either the preconceived notion of divorce as an intrinsic social evil or of divorce as a basic human right, the movement which occurred within the joint committee, the movement that has occurred over the past two years among Members of the Oireachtas, will be followed by a movement of opinion within the public at large and that the present social evils arising from the irretrievable breakdown of marriage will indeed be remedied through a divorce solution. Equally I believe that if we proceed too quickly this will be self-defeating. I would remind you of one of the final scenes in the Merchant of Venice when Shylock came to court and was very insistent, since he had such a noble judge — as we all believe we have a noble judge among the electorate — and declared "Proceed to judgment. Let us have justice". The advocates who are now urging that we proceed immediately to judgment may suffer the disappointment of Shylock as the result of the judgment handed down.

Question put: "That the words proposed to be deleted stand."

The Seanad divided: Tá, 20; Níl, 14.

Tá

Belton, Luke.
Browne, John.
Bulbulia, Katharine.
Connor, John.
Daly, Jack.
Deenihan, Jimmy.
Dooge, James C.I.
Durcan, Patrick.
FitzGerald, Alexis J.G.
Fleming, Brian.
Higgins, Jim.
Hourigan, Richard V.
Howard, Michael.
Kelleher, Peter.
Kennedy, Patrick.
Lennon, Joseph.
McDonald, Charlie.
McMahon, Larry.
O'Brien, Andy.
Quealy, Michael A.

Níl

Conway, Timmy.
Ferris, Michael.
Harte, John.
Higgins, Michael D.
Howlin, Brendan.
McAuliffe-Ennis,
Helena.
McGonagle, Stephen.
McGuinness,
Catherine I.B.
Magner, Pat.
O'Mahony, Flor.
Robb, John D.A.
Robinson, Mary T.W.
Ross, Shane P.N.
Ryan, Brendan.

Tellers: Tá: Senators Belton and Daly; Níl: Senators B. Ryan and Ross.

Question declared carried.

Amendment declared lost.

An Cathaoirleach

Is the motion agreed to?

Senators

Agreed.

Professor Dooge

Is the motion unanimously agreed to? In that case we would like to determine the decision of the House.

An Cathaoirleach

The question is: "That the motion be agreed."

Senators

Agreed.

An Cathaoirleach

Those in favour say "Tá".

Senators

Tá.

An Cathaoirleach

Those against say "Níl".

Senators

Níl.

An Cathaoirleach

I think the motion is carried.

(Interruptions.)

Professor Dooge

I would like a vote in order that there would be a record of the opinion of all Members of the House on this substantive issue.

An Cathaoirleach

Is somebody claiming a Division?

Senators

Yes.

Mr. Ferris

I am claiming a Division.

An Cathaoirleach

Those claiming a Division please stand.

More than five Senators rose.

Division bells rung.

An Cathaoirleach

I am putting the question again that the motion be agreed to. Those in favour say "Tá".

Senators

Tá.

An Cathaoirleach

Those against say "Níl".

(Interruptions.)

An Cathaoirleach

I will adjourn the Seanad.

(Interruptions.)

An Cathaoirleach

Those against say "Níl". There can be no point of order. There can be no point of information.

(Interruptions.)

Mr. Killilea

You called a Division in the Seanad. You asked for a number of people to rise. A number of people rose. You declared a Division. You stood up from the Chair. You walked out; the bells rang. Now there seems to be a dilemma.

(Interruptions.)

Mrs. Robinson

There is no dilemma.

Mr. Killilea

Senator Michael D. Higgins is shouting for a vote. The Cathaoirleach is saying he is disbanding the Seanad. What happens the bell-ringing process?

An Cathaoirleach

Those against say "Níl".

Mr. Lanigan

There has been a vote called for and you changed your mind, a Chathaoirligh. You asked for those who oppose the motion to stand, and everybody on that side of the House stood up and now you are asking us——

Mrs. Robinson

That is not right.

An Cathaoirleach

I am not asking anybody to change their mind. The situation is that you will not appoint tellers against.

Mr. Killilea

Who will not?

Mr. Lanigan

Nobody has asked anybody to appoint tellers yet, a Chathaoirligh, so how can you tell us before tellers are appointed that we are not going to appoint tellers? You have made two very fundamental mistakes. You put the wrong question and the people fell into the trap on that side of the House and now you are telling us that we will not appoint tellers. We have not said anything.

Mr. Killilea

You stood up and shouted and claimed. Now let them bring the House to order.

(Interruptions.)

Mr. Robb

The people of Ireland are involved in it and the people of Northern Ireland are watching your behaviour in this House and it is a disgrace.

Senators

Hear, hear.

(Interruptions.)

Mr. Robb

It is a great, sensitive issue that affects the lives of many people. Let us have a vote.

Senators

Hear, hear.

Mr. Robb

Let us have a vote.

Senators

Hear, hear.

End of story, it is up to the Government——

(Interruptions.)

An Cathaoirleach

I adjourn the Seanad until 10.30 a.m. tomorrow.

The Seanad adjourned at 9.40 p.m. until 10.30 a.m. on Thursday, 7 November 1985.

Seanad Éireann díospóireacht - Wednesday, 6 Nov 1985