An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Coiste. Tenth Amendment of the Constitution Bill, 1986: Committee Stage.

To assist the Seanad in its consideration of the Committee Stage, the Chair suggests that the debate on section 1 be confined to the proposition contained in amendment No.1 and that the remaining amendments which relate to matters of detail be taken up on the Schedule should section 1, unamended, stand part of the Bill. We could not in any case debate the Schedule on the section and again on the Schedule itself. If and when we come to the Schedule, I will suggest groupings for the remaining amendments. Is that agreed?



ALT 1.


Tairgim leasú Uimh. 1:

Ar leathanach 5, líne 12, "mar a leanas" a scriosadh agus i línte 12 go 18 na focail uile tar éis "den Bhunreacht:" go ndeireadh an ailt a scriosadh agus an méid seo a leanas a chur ina n-ionad:—

"(a) trí fho-alt 2º d'alt 3 a scriosadh den téacs Gaeilge,


(b) trí fho-alt 2º d'alt 3 a scriosadh den téacs Sacs-Bhéarla".

I move amendment No. 1:

In page 4, lines 12 to 18, to delete all words after "hereby amended" down to the end of the section and substitute as follows:-

"(a) by the deletion of subsection 2º of section 3 of the Irish text,


(b) by the deletion of subsection 2º of section 3 of the English text".

I see very little point in putting amendments to this Bill because of the tight timetable. Whatever amendment is put down today it is most unlikely that it will be accepted. It is a pity we have this sort of timetable, and whatever suggestions or amendments we make it is inevitable that we will not get them passed because the Government want to have a referendum on 26 June. To some extent this makes a charade of our activities here today. While we may be listened to, there is no possibility of having any change made in this Bill.

The reason I put down this amendment is very simple: it is to simplify the Bill because I think the sort of change which the Bill makes to the Constitution is somewhat dangerous in that it is a precedent for putting legislative detail into our Constitution and in future, if we want to change this detail we will have to hold a referendum. The reason for this Bill being put in such detail and such concessions having been made is obvious. I would prefer by this amendment simply to delete Article 41.3.2º, take it out of the Constitution and start again and give the matter to the legislature. That would be the simplest and logical thing to do, and that was what was debated up to recently when the Government decided to put this detail in the Constitution.

I can understand why the Government have done this. It is because they want to make concessions to pressure groups and because they feel that by making concessions not only to the Roman Catholic Hierarchy but to other pressure groups who will oppose this Bill, they will have a great chance of getting this through the people. It is a device — not a terribly honest one because all these things could be put in substance in legislation. It is a tactic in order to get it through a referendum. I do not believe that this will make very much difference because the detail in this Bill will give more ammunition to those who oppose it. Already the Hierarchy have issued a statement saying that this Bill makes divorce very easy because of the definition they take of the word"failure". I am afraid by going into detail on the Constitution we are making it easier for them to oppose it rather than having a blanket removal of Article 41.3.2º

The Minister of State in her speech here on Thursday mentioned that there might be a constitutional problem in deleting Article 41.3.2º in that it might conflict with other Articles in the Constitution which define the inalienable rights of the family. If that is true, and it may be so, then putting this Bill before the House will also be unconstitutional because it does the same thing. Both Bills have the same principle in that they allow the dissolution of marriage in certain circumstances. Therefore, I do not think that the argument that removing Article 41.3.2º might solve constitutional problems carries a great deal of weight.

I would like the Minister to tell us if he has any plans in this context because we are going to have continuous problems on the Constitution, not just as a result of this Bill but for other reasons. Has he plans for looking at the Constitution in general or for setting up an all-party constitutional committee — there is a great case for doing that — or for drafting and framing a possible new Constitution whereby denominational clauses such as the Eighth Amendment to the Constitution could be removed? This Bill follows in that dangerous trend of the Eight Amendment of the Constitution in putting detail in and tinkering with the Constitution in a cavalier fashion. It inserts into the Constitution items which ought to be in legislation because of the particular interests of pressure groups. It is bad for the Constitution to do this. This is why I ask that Article 41.3.2º be removed. We are binding ourselves into a very dangerous sort of strait jacket and putting ourselves in the situation of binding future generations, and we make this item very difficult to change.

It would also help us if the Minister were to set up some sort of all-party committee, although in the past that has not proved a very effective means of doing things. The findings of one of these have been gathering dust in the Library for 20 years. However, it underlines the case for looking at the Constitution seriously and in welcoming the Bill I think that this would be an improvement. It would be simpler. It would abolish the precedent and it would be consistent with the constitutional crusade which the Taoiseach announced some years ago. The trouble with this Bill is that, the constitutional crusade having gone off at half cock, the Taoiseach followed part of the principle which he set out to do, he has taken two steps forward and by putting detail of this sort into the Bill he has taken one step back.

I am afraid that as a lawyer I cannot support this amendment which Senator Ross has proposed and which consists of the simple deletion of Article 41.3.2º, namely, the provision which states that no law shall be enacted providing for the grant of a dissolution of marriage. Simply to remove that would not necessarily achieve the objective which I presume Senator Ross would want — it would not necessarily mean that divorce legislation could be introduced. There must be grave doubt about whether, if the provision was simply deleted, any Government could then come forward and propose divorce legislation, because the other provisions of Article 41, particularly Article 41.3.1º, would raise a very serious doubt about the constitutionality of any proposal for divorce legislation. Article 41.3.1º, as the House knows, states:

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.

Therefore, if we did not have a form of constitutional amendment which authorises the introduction of divorce legislation, a simple deletion could raise very serious doubts about the constitutionality of any proposed divorce legislation. I think that is the answer. It is a view that has been taken by constitutional lawyers for some time, and that is why the proposals for amendment which have been tabled have been in what has been called positive format. They have positively empowered the Oireachtas to introduce legislation dissolving marriage. That was the approach which I adopted in drafting a Bill for the Parliamentary Labour Party in 1980 and a subsequent Bill which was introduced by Deputy Mervyn Taylor in November 1985. Both of those were in a positive format.

This matter was considered in some detail by the Joint Committee on Marriage Breakdown. Although the joint committee did not in their report come forward with detailed proposals of the kind of divorce legislation which should be introduced if the referendum so enabled, it was made very clear in the report that the committee, having examined the matter, recommended that any proposal for a constitutional amendment must be in a positive format — in other words, not, as Senator Ross is proposing, a simple deletion. This is contained at page 89 of the report in paragraph 7.8.29 as follows:

So as to ensure that no constitutional ambiguity results from any such referendum, the Committee feels that any amendment to be voted upon should be in a positive format.

Whatever other difficulties I may have with the wording of the Government's proposal, I welcome the fact that it is in a positive format. That is vital. Therefore, I cannot support this amendment. Ironically, Senator Ross is on record as wanting divorce legislation, but he is proposing an amendment which would make it very doubtful indeed as to whether any Government could bring in divorce legislation.

As a Senator rather than a lawyer, I think that the amendment as proposed by Senator Ross would not achieve the objective which he sets himself. I share the analysis of the situation expressed by Senator Robinson. I believe that Article 41.3.1º would in such circumstances be capable of being reinterpreted to include a new set of values and a new set of protections. It may well be that the protections referred to in Article 41.3.1º would include forbidding the Oireachtas enacting any law relating to the dissolution of marriage. In those circumstances I could not support that amendment either, as we would be putting something to the people the outcome of which was quite uncertain and which might have a meaning which would be directly opposite to that which was intended by those proposing it. We have got to be careful in enacting any change in the Constitution in so far as it is possible to do so. Language is never an exact science but, in so far as it is possible to do so, the meaning should be clear, not only to the people and to ourselves, but also to the courts whose duty it will be in time to interpret the exact meaning of the words remaining in the Constitution.

This proposal must be distinguished from other proposals. The argument is sometimes made that the addition of some sections to the Constitution might be in conflict with other sections of the Constitution. That is a different problem. There are, of course, within a document as long as this, potential inconsistencies of all kinds. It is up to the courts to try to reconcile these inconsistencies to the best of their ability. The people cannot be prevented from enacting something because there is a potential conflict with some other section of the Constitution. It is up to the courts to sort out any problem that might arise as a result of any such conflict.

That is quite different from the situation where what is being proposed is to extract from the Constitution because then there is a new document which must be interpreted in its entirety without any reference to what has been deleted. In those circumstances, as Senator Robinson said, the whole thrust of Article 41 particularly when it refers to the family as a 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 is in question. That is the general tone, together with the provisions of Article 41.3.1.º where 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.

One could imagine a very substantial argument in respect of any proposed divorce legislation being made in the court as to why that divorce legislation in particular — it would not even be necessary to show it in respect of divorce legislation in general but only in respect of the particular proposals — would be passed by the Oireachtas on a reference under the Constitution or as a result of a constitutional challenge by a private citizen afterwards. One could imagine Article 41.3.1º being used with great effect to frustrate the will of the people. It is important for that reason, whatever decision we come to with regard to the insertion of a new section in the Constitution, that we should say positively what we intend to do so as nobody, including ourselves, is under any illusion with regard to the intended outcome.

Senator Ross may not be so pleased to hear me say it, but the simple deletion of Article 41.3.2º would be an Irish solution of another kind to an Irish problem, that the issue would be fudged and that there would be a great big amendment campaign at the end of the day which might not mean anything. There are areas of sexual morality where massive campaigns have been launched on the back of something as flimsy as that. We are in danger of getting an Irish solution to an Irish problem, in other words, a lot of hoo-ha and ruaile-buaile about something which ultimately, on closer examination, might turn out to have been totally ineffective. In those circumstances, for those reasons and because it is necessary to state whatever rights we consider to be appropriate in the Constitution in the clearest terms, I certainly could not support the amendment.

I support the view expressed by Senator Robinson and Senator O'Leary and I dealt with that point on Second Stage. I fully agree that merely to take subsection 2º out of section 3 would in itself not be sufficient because the remainder of the Article is so strongly in support of marriage that it simply would not work.

The Bill as it now stands is quite an extraordinary one because, as the previous two speakers agreed, the Article is very strongly in support of marriage and taking it out would not allow divorce. Now we have the situation where part of the Article will say that, in no circumstances could we have divorce, and the other part of the Article will say that we can have divorce. I do not know how that will work out. It seems more than likely that at some stage the Supreme Court will be asked to try to interpret the position in regard to an Article which says two different things. It will not merely be enough to say, because there is a positive permission for divorce in one stage of the Bill, that completely obliterates and makes the remainder of the Article null and void. They will both be there.

Senator O'Leary used a phrase which sums it up pretty well. He says that accepting this amendment would be a kind of Irish solution to an Irish problem. It seems that what the Government are doing is an attempt to have an Irish solution to an Irish problem. They are asking the people to adopt an Article which will have two opposite meanings. They are hoping nobody will test the matter; that if it is passed people will have to go along with it. Most people want divorce, or at least are in favour of having provision for divorce, but are not interested in asking the Supreme Court to try to sort it out. That would be the Irish solution to the Irish problem. "Fudging the issue" is what Senator O'Leary said and I could not think of a better example of fudging the issue. Perhaps if it goes through, nobody will ever press this matter and the Supreme Court will never have to face up to this problem.

The mind boggles as to how they will interpret the Article in the circumstances. They will probably come to the conclusion, because they are very responsible and perhaps very charitable people, that the Government and the Legislature must have meant what they said and known what they meant and that if they said there should be divorce, then they must have meant it, regardless of the fact that the remainder of the Article is still saying that we should not have divorce. Perhaps the Supreme Court in the end will adopt the latter, in other words, because the decision to allow divorce came after the other part of the Article that is what the Legislature intended. It is without any question an Irish solution, and I thank Senator O'Leary for reminding me of these very apt words.

However, for the reasons which have already been expressed here and the reasons which I have expressed on Second Stage, merely to take out the subsection dealing with the dissolution of mariage definitely would not be enough and any legislation introduced for divorce in these circumstances would quite simply be declared unconstitutional.

I heard the arguments against this amendment proposed by Senator Ross. Senator Robinson gave the legal implications of it which is the precise and proper way to approach it.

Senator O'Leary said he was speaking as a lawyer but I would like to give a view as a layman, though being a Senator does not forbid me to give that view. We have to reassure the people — they are Irish people — because when they are voting they want to deal with the problem as they see it in Ireland. Even if that produces an Irish solution to the problem, at least it is the voice of the people. I do not want to be ruled out of order in view of the remarks of the Cathaoirleach about the amendment but I must emphasise that it is important to replace an Article in the Constitution with a positive Article that takes into account the provision in the Schedule. It is the contents of the Schedule that the people will be voting on. They will be voting on what is contained in the Schedule and the requirements in it in regard to whether a court will consider the dissolution of marriage or not. If we follow that argument to its logical conclusion a court will have to act in accordance with the Constitution, amended or not, and it will be for it to adhere to the terms of the Schedule in applications from the people in trouble. If that was not part of the referendum there would be a 100 per cent no vote. Whether we like it or not, whether a constitutional problem would be created or not, if we sought to delete this in the hope that the constitutional problems will be overcome and the matter left in the hands of the legislators completely and totally ad infinitum it would not succeed. Unfortunately, not everybody trusts legislators at any given time. They change from time to time and the views of legislators also change from time to time. It is important that the people know what will happen if they allow this amendment to be inserted into the Constitution. Senator Mullooly thought that if the people pass this amendment there will be a further movement by the Legislature to liberalise the laws. If we did not have some positive provision to preclude that, that would happen and I do not think the people would be pleased.

In Ireland we have a different mentality and attitude than most other countries. As the Minister said in his reply to the Second Stage debate late last night, we are different from anybody else because we have a Constitution that protects rights, including the rights of existing families. He confirmed that those rights will not be interfered with by this amendment. We are not going to open the floodgates or anything like that. We are putting in a specific provision into the Article which will ensure that, if ever the situation changes again in ten or 20 years, the people will have the opportunity to say if they agree with it. It is important that, to have a Constitution which defends the rights of people and it is important that, if it is to be amended, it should be amended in such a way as to take account of problems, exercising a certain amount of compassion. If a change is proposed at any given date in the future there will still be a constitutional safety valve to ensure that the Legislature will have regard to the voice of the people.

Ba mhaith liom focal gairid a rá anseo. Labhair mé faoin gceist seo trathnóna inniu, agus tá sé ag cur as dom agus tá sé ag cur buartha orm, an féidir Airteagal 41 a athrú ar chor ar bith? De réir na foclaíochta atá anseo atá an-láidir agus an-daingean agus atá im thuairimse do-shéanta. Cuir i gcás

admahaíonn an Stát gurb é an Teaghlach buíon-priomha bunaidh don chomh-dhaonnacht do réir nadúra agus gur foras mórálta é ag a bhfuil cirt do-shannta, dochloíte.

Anois má tá cearta do-shannta, dochloíte ag pobal na hÉireann an bhfuil sé loighiciúil nó reasúnta nó do réir réasúin go bhféadfaí na cearta sin a athrú má tá siad níos ársa, nó níos sine agus níos áirde ná aon reacht daonna? Anois, mar adúirt mé inné, seo é an reacht daonna. An rud atá faoi sin i mBéarla ná "superior to all positive laws". Tabhair faoi deara that the English version does not say "Human laws". It says "positive laws", and I would suggest that the proper, indisputable translation of that should be "aon reacht dá dhearfa é" ach ní sin an rud atá in Airteagal 41. Is é an rud atá in Airteagal 41 na "aon cheart daonna". Tá difríocht an-mhór idir an dá rud. Céard is ceart daonna ann? An ceart daonna atá á mholadh insan mBille seo sin é an ceart daonna atá i gceist. Ach de réir an Bhunreachta nó de réir an Airteagail seo, insan mBunreacht ar a ghlacadh leis ag na daoine, pobal na hEireann, i 1937, deir sé nach féidir Airteagal 41 a athrú nó a aistriú, fiú amháin ar aon bhealach ach le reacht daonna. Is focail an-láidir iad agus tráchtann an leagan Béarla ar "Imprescriptible and inalienable rights". Baineann inalienable rights leis an duine agus má tá sé inalienable ní féidir é a aistriú. Agus an leagan Gaeilge atá air sin ó cheart "do-aistrithe", inalienable, rud atá doaistrithe nó nach féidir a aistriú agus má tá an ceart sin agamsa, do réir Airteagail 41 de Bhunreacht na hÉireann, an bhfuil sé loighiciúil a bheith ag súil go bhféadfaí é a aistriú. Agus má haistríotar é — agus is féidir é a dhéanamh ceart go leor má ritear an Bille seo agus má ghlactar leis— má thugtar dúshlán don Bhille sin taréis é a bheith glactha leis ag muintir na hÉireann, is dóigh liomsa go mbeidh cúis antábhachtach ar fad ag an Ardchúirt nó cibé cúirt is ceart dó an chúis sin a thriail agus a mheas. Ach measaim go macánta, I believe sincerely.

The House did notice that the English version does not say human laws, it says positive laws. I suggest that the proper indisputable translation of that should be that we are not entitled to do that under Article 41 of the Constitution which was passed by the people in 1937. That is my conviction.

The Senator might keep to the amendment.

I am not a lawyer.

We will come to the section in due course.

I am trying to speak to the amendment in my interpretation of the language which is used.

We are discussing Senator Ross's amendment. That is all that is before the House. We will come to the section later.

Mar adúirt tú faoin alt atá i gceist agus na coimhlintí idir ceartanna atá luaite ag na Seanadóirí de Brún agus Eoin Ryan, is féidir liom labhairt futhu níos déanaí.

As far as the amendment goes I must say that legal opinions from all sides of the House have overwhelmed me. I am perfectly happy that the amendment Senator Ross has introduced would quite likely make a bad situation worse and leave us in an extraordinary quagmire where we could have a succession of attempts at legislation on the dissolution of marriage being quashed one after another by the Supreme Court. We could probably end up in a bigger legal morass than we are in at present if we simply delete it. I cannot help thinking about the irony of it, that if there had been a simple proposal to delete that, the forces opposed to the provision for the dissolution of marriage would be even more hysterical though it would appear that the consequence of a simple deletion of the Article would be far less threatening to their own interests. Nevertheless, to propose a simple deletion would have caused an even more hysterical reaction than has been caused by this modest proposal. I cannot help thinking of what a certain eminent person in our society said at least ten years ago — that our Constitution was far too complicated and that what we needed was a short Constitution setting out basic rights. That eminent person was Cardinal Ó Fiaich.

I wonder if he holds the same view today in the light of some of his comments recently about the proposed amendment to the Constitution?

While I would love to support Senator Ross's amendment as being simple and leaving a job like this to the Legislature, which is where it should be rather than to the Constitution, the arguments are overwhelming that it would not work. I keep wondering if the other Articles in the Constitution with regard to the rights of the family are so clearly positively against the concept of the dissolution of marriage why was this subsection prohibiting legislation on the dissolution of marriage thought to be necessary in the first case?

There must be an argument somewhere that without the provision for the prohibition of the dissolution of marriage somebody must have been giving advice to the Government in the thirties who suggested that without this extra copperfastening some subversive Legislature sooner or later might be able to get around it. I wonder why?

I would like to say for the benefit of the Senator that it is not that one could not pass such legislation. It would be uncertain whether one could. That is the crucial point. I do not think anyone can positively say that one could never pass legislation to introduce divorce if one deletes that subsection. As to whether one could or could not would be uncertain and would have to await the proposal of a Bill, its passing by both Houses of the Oireachtas and a decision on it by the High Court or the Supreme Court, depending on what method was used. It is in that regard that Senator Eoin Ryan's argument does not stand up. The Article as it stands, if we adopt Senator Ross's proposal, does not automatically mean that divorce legislation cannot be introduced. It makes it doubtful whether it can or not.

When one has a situation where one has an Article such as this, which is, on any reasonable interpretation, that there is a doubt as to whether one can do something, and when one superimposes on top of that another Article which says positively you can do something, there is no doubt that there is only one correct interpretation of that complete new Article. Senator Eoin Ryan's problem is not a real problem because while the language of the remainder of the Article is very strong, it is imprecise. It is capable, in the absence of any information or any other reference to the dissolution of marriage, of being interpreted one way or the other. With that language and a positive statement inserted that a law permitting the dissolution of marriage may be enacted there can be no doubt as to which of these two different provisions, the imprecise desire to protect marriage or a specific provision to allow the dissolution of marriage, is superior.

The problem created by Senator Eoin Ryan is not a real problem. The problem created by this amendment might be a real problem. We cannot say anything more definite than that. For that reason, to proceed on the basis of leaving the position constitutionally uncertain is an exercise in futility. Therefore, I do not support it.

I hesitate to intrude in an area that requires legal expertise. To some extent Senator O'Leary has clarified what I was about to ask. It would seem to me as a layman that the deletion of this subsection, as proposed by Senator Ross, would enable the Government to bring in divorce legislation if they wanted to. I understood from Senator Robinson's contribution that because of the later part of the section in the Constitution where the State pledges itself to guard with special care the institution of marriage this will not be possible. I now understand from Senator O'Leary there is a question mark about this. If we were to accept that because of that specific Article divorce legislation could not be introduced the implication is that divorce legislation is an attack on the family. I could not subscribe to that.

We could have divorce legislation and still pledge to guard with special care the institution of marriage. A case could be made where it could enhance the institution of marriage. I would also say in the context of the terms of the Bill before us that that is what is going to happen. That is the only point I would like to get clarity on. My understanding from Senator O'Leary's contribution is that there is that question mark about this. I do not, of course, accept the suggestion that divorce is an attack on marriage.

I am delighted at the way the debate has developed, and I congratulate Members of the House who have shown such an extraordinary lack of humility in their ability to interpret the Constitution, because I am certain that the only debate I have heard here before which was similar was on extradition when speaker after speaker on all sides told us that extradition of political offenders to Northern Ireland could not be done because it was unconstitutional.

That is not true.

They did. Speaker after speaker did that.

Not all speakers.

I did not say all speakers. I said, "speaker after speaker". I am delighted that at the end of that debate the only people who voted to introduce the possibility of extradition were five non-lawyers. One or two years later the Supreme Court interpreted the Constitution in a way completely opposite from what the House said the court would do. I am a little tired of people getting up here saying that the Constitution will be interpreted in such and such a way. I am delighted to hear the opinions but I wish they were not so doctrinaire. If their opinions were true they would not be in the Seanad, they would be in the Supreme Court. Maybe that is where they ought to be.


It has been notable that nobody has replied to the point which I made that the detail in this legislation is a tactic, perhaps legitimate, to get it through. I am not a very humble person but obviously I am more humble than most people here. I do not know which way the Supreme Court would interpret the deletion of this Article, nor does anybody else here. What I know is that the Government could introduce legislation, if it were deleted, that might or might not be tested in the Supreme Court. I ask Members not to be getting up here continuously subverting and taking over this role of the Supreme Court, but to argue the point on its merits, not on its constitutional interpretation, because they are not capable of doing so and they are not here to do that.

Contrary to what Senator Ross has said, lawyers are very humble people. They never state the law with certainty; they merely give opinions. They merely give opinions as to how the Supreme Court would interpret something. It seemed to me that Senator O'Leary backed away from what he had said earlier about this. He said one could not be certain what the Supreme Court would do if Senator Ross's amendment were adopted. Of course we could not be certain, but I put it to Senator O'Leary that, if he were asked to write an opinion on what the Supreme Court would decide, his opinion would be that the Supreme Court would find that a divorce law passed after merely deleting the subsection on divorce would be unconstitutional.

Not only are we entitled, but we are obliged to give our opinions as to what the effect of this legislation would be. Senator Robinson expressed an opinion, following Senator O'Leary's opinion qualified a bit later on, that Senator Ross's solution would not work and that the Supreme Court would not allow divorce merely by eliminating that subsection.

The argument about what the Supreme Court will do if this amendment is passed is inapplicable because I did not say what they would do. I said I could not imagine what they would do because they would have an extremely difficult task to try to reconcile the two parts of this Article. If the Government want to introduce this in a way in which constitutional problems would not arise, they should eliminate Article 41.3.1º or rewrite it. It provides for guarding with special care the institution of marriage on which the family is founded, and to protect it against attack. That is the part that is inconsistent with legislation for the introduction of divorce. If we were to face up to the consequences of that, that subsection should be rewritten in a way that would not confront us with a conflict on the introduction of divorce.

We are talking about our opinions on what the position is. Perhaps nobody will ever test it because we will have to accept the decision of the people. If the people decide in a certain way, the matter may never be tested. Not only here today but elsewhere there has been general agreement among lawyers for many years that merely to eliminate Article 41.3.1º would not be enough to allow the introduction of divorce. Therefore, I could not support Senator Ross. The Government should have gone further, faced up to the problem and either eliminated it or rewritten section 3.1º.

Senator Ross chose to give us all lessons in humility and to criticise us for a lack of humility. Anybody who puts down an amendment to a Bill seeking to amend the Constitution must be aware that this is a very technical field and that it is bound to be analysed by lawyers. I ask Senator Ross whether he, in humility, took advice on the amendment or whether in his wisdom he did not find it necessary to take advice on it. It is clear, because the Minister has not found it necessary to come in on it, that the amendment would promote the greatest doubt in an area in which, whatever else we want, we want clarity about whether a referendum on which the people would vote would enable a Government to introduce divorce legislation. That is the minimum and this amendment does not achieve that minimum.

I add my voice to those of the other proud and unhumble lawyers who are Members of this House. It seems to me that Senators Robinson and O'Leary are right in saying that the difficulty is that the amendment would create uncertainty. This is the last thing we can possibly want. It is important that the Joint Committee on Marriage Breakdown, which contained quite a number of these lawyers, considered the position over a considerable period and came to the conclusion that a clear and positive amendment would be needed, that it would not be sufficient to take away a section of an Article of the Constitution. If I were asked to give an opinion, though I sympathise a great deal with Senator Ross reasons for putting in this amendment and with his opinion that it is not a good thing to have something of great detail in the Constitution, I would have to say that, at least, the amendment would create an area of uncertainty and I would not want to see that happen.

There was one other point I wanted to make in response to Senator Eoin Ryan's last intervention on the text of Article 41.3.1º. He conceded that there is some problem in reconciling that section as it stands even with the Government's amendment and I would be inclined to agree with him to some extent in that. That is why the Bill which was drafted for the Labour Party, and introduced by Deputy Taylor last November, addressed that problem. The approach was to amend Article 41.3.1º. I will remind the House as Members may not have seen the text. It was amended in order to ensure that the section read in a way which fitted into the structure of the Article as follows:

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. This shall not be held to mean that the State shall not, in its enactments, provide for the grant of a dissolution of marriage in such circumstances where it is clear that due to the breakdown of a marriage the parties thereto cannot reasonably be required to continue to reside together as husband and wife.

I am not saying that is perfection of wording, but it addresses precisely the problem which Senator Ryan mentioned. It allows a continuity within the paragraph which takes away any possible ambiguity.

I must point out to Senator Ross that I am not disposed to accept his amendment at 11 a.m. Equally I would not be disposed to accept it at 11 a.m. next Saturday morning or the Saturday after that, or the Saturday after that. It is not a question of timing; it is a position I take on the merits of his proposal. I do not intend to rehearse again the arguments so ably deployed by the lawyers here but which I must say have convinced me. There are not many people who accuse me of excessive humility, rather the contrary, and it is very well known and admitted by lawyers that economists have, perhaps, if anything a better insight.

Having said that, I should like to make the point that the suggestion by Senator Ross that it is dangerous to put legislative detail into the Constitution is one which we cannot allow to pass just like that. There is a precedent for the inclusion of detailed provisions in the Constitution. Article 40.4. is an example of that. The difficulty that would arise here were we to put in no detail at all has been amply demonstrated by what Senator Robinson, Senator O'Leary and others have said. I do not intend to repeat all that.

It is, I suppose, a common and legitimate ploy of political debate to say, when a Government make a proposal with which one agrees that is so crafted as to bring about a consensus, one congratulates the Government for a certain amount of political sagacity. When the Government make a proposal that is so crafted as to bring about a consensus with which one does not agree, one accuses the Government of giving in to pressure groups. The latter course is the one Senator Ross has followed.

As has been pointed out on Second Stage, in this amendment, we have sought to bring about a balance in the action we take that will allow us to achieve a particular objective in a way which will bring about a consensus bearing in mind the fact that, as far as we can read the feelings of the people, their belief is that if we make a provision that allows divorce it should be a restrictive provision. The difficulty has been to find a way in which a constitutional amendment can clearly indicate and lay down for the courts the restrictions within which the legislation must be implemented and within which the courts must act. That is why we have chosen the particular form of the amendment here. We could not do that if we were to follow the line that we simply delete the provision in the present Constitution. That would be another disadvantage to be added to the other disadvantages associated with the course of simple deletion.

It has been suggested that there would be some possible conflict in the course we are following, indeed in any provision for dissolution of marriage, and the provision and the concern that the Constitution expresses for the protection of the institution of marriage. In protecting an institution and guarding it with special care one is not necessarily obliged to say that that institution must always and everywhere and in all circumstances be right and, by definition, be perfect in all its works. It seems to me that in guarding an institution one can quite legitimately recognise that, in some cases or circumstances, it has its faults or difficulties for which provision should be made. To make that provision does not in any way take away from the importance one accords to the institution.

In relation to the provision in Article 41 as far as the family is concerned I would like, briefly, to venture into the territory explored by Senator de Brún. The rights which are mentioned there are rights for the family: they are not rights for marriage. The potential conflict with Senator de Brún has indicated there does not arise in the way he suggests. We are making provisions for the dissolution of marriage. The rights that are granted to the family are granted to the family which has a separate constitution and what we do about marriage does not necessarily impinge on the family in the way Senator de Brún suggested.

Ba mhaith liom a rá i dtosach nach dlíodóir mé. Glacaim le tuairimí na ndlíodóirí go fonnmhar agus go humhal ach tuigim focail agus tuigim na focail atá in Airteagal 41. Glacaim ar bhealach leis an rud atá ráite ag an tAire. I say humbly that I am not a lawyer. I said that here yesterday evening. I respect the expertise, knowledge and depth of experience of the lawyers in dealing with matters of all kinds and particularly constitutional matters. However, I must say in self-defence or in fairness to myself that I understand words reasonably well and I can claim that I have a very good knowledge of the Irish language and the importance of the words used in Article 41. Despite what the Minister says in this regard, we are dealing here with possibly the alteration of marriage and that necessarily is not inextricably connected with the family. Surely the interpretation, meaning and basic intention of the word "teaghlach", under which Article 41 is cited, is that "an teaghlach" is a teaghlach based on a family in which there is a father, mother and children. I was called to order before because it was thought I was not speaking to the amendment. That may be true, but I was to the extent I was relating the amendment to the effect it would have on its being substituted for section 3 of Article 41. To that extent I thought I was dealing with the amendment.

Mar a deirtear i Gaeilge, sin scéal eile. Creidimse, in ainneoin na ndlíodóirí agus in ainneoin a saineolas ar dhlí agus ar chúrsaí dlí go ginearálta agus go mór mhór dlí an Stáit, go mbaineann Airteagal 41 leis an teaghlach, le clann, le muirín agus le daoine atá in a gcónaí in aon tíos de réir dlí Dé agus dlí an Stáit. Measaim — agus níl mé ag caint mar mar thuata anois, níl mé ag caint mar dhliodóir — ma thógann tú é sin agus má athraíonn tú é agus fo-alt eile mar atá á mholadh anseo a chur isteach in áit fo-alt 3 a deireann nach gceadófaí aon ionsaí a dhéanamh ar a bpósadh, measaim go bhfuil tú go bunúsach agus go dearfa ag cur isteach ar an bhfoclaíocht, ar an gciall agus ar an gciall do-aistrithe mar a deirtear san Airteagal féin. Deirtear go bhfuil na cearta atá ann do-chloíte, agus níos áirde, mar a dúirt mé cheana, ná aon reacht daonna agus is reacht daonna atáimid ag iarraidh a chur i bhfeidhm anseo le cúpla seachtain.

Is dóigh liom fós go gcuirfidh fo-alt eile in áit fo-alt a 3 isteach ar éifeacht Airteagal 41 a cuireadh ansin le cead muintir na hÉireann i 1937 agus ar glacadh leis le móramh agus gurb é an teaghlach atá i gceist ann, clann agus muintir athair, máthair, bídis ann nó ná bídis ann. Measaim é sin go humhal.

I humbly submit that what I was saying is etymologically correct based on an focal "teaghlach".

Does the Minister agree that the Constitution is possibly proving a complicated obstacle when introducing legislation of this nature? The Government's intention in this matter is obvious but it is equally obvious from this debate and from the debate in the Dáil that there are great difficulties in introducing this legislation because of the Constitution. Perhaps he would agree with me that there is need for him to consider whether we should have a new Constitution, which would be very short, with a definition of basic human rights. This debate has shown that there is a difficulty in interpretation. We have a large number of lawyers here who can occasionally be wrong about their interpretations but they are very happy to give us their advice on the situation.

Caithfidh mé a rá go bhfuil sé an-deacair dom an pointe atá á dhéanamh ag an Seanadóir de Brún a thuiscint go cruinn. Ar an gcéad dul síos, os rud go bhfuil an difríocht idir an teaghlach agus an pósadh féin deimhnithe sa Bhunreacht is deacair glacadh leis go bhfuil na cearta atá caomhnaithe taobh istigh den institution a thugtar an teaghlach air teoranta leis an coinceap eile den phósadh.

It is difficult to accept the interesting point being pursued by Senator de Brún in so far as even in the 1937 Constitution's clauses, defective as they are and reflecting as they do the social conditions of that time, the distinction between the rights which can be elicited later before the courts within the institution of the family and the relationships of the family which are created by the act of marriage is that, if one were to argue that the act of marriage encompasses the rights that will be discerned within the family and within the relationships of the family, one would seriously limit the protection which this defective clause within a defective Constitution gives.

It is an interesting argument to suggest that if you take away the bunchloch you are shaking the foundation upon which the rights are based. That is not justified if one looks at the way in which the Constitution is interpreted in modern terms and in which it has been interpreted by the courts in the eighties. Children have rights. This is guaranteed in a later clause in the Constitution. Individuals have rights. With respect to the great learning of Senator de Brún in this regard, "teaghlach" is translated as household which goes beyond family and marriage. My inclination is towards the concept of household. It is a more meaningful term in relation to law and to the practice and delivery of social services. A man and woman who have lived together for a long period of time, who have children and are seeking to educate them constitute a household. It is fictional that they are not endowed with any of the high terms contained within the Constitution. They would be described by the Irish term "teaghlach". They would be so described by a native Irish speaker and by anybody using Irish regularly.

This older, more generous term is derived from the time in Irish society when divorce was accepted, as it was in ancient Ireland. It was not constricted or narrowed by this narrow definition of the family. It would be a narrower interpretation still to say that the rights of either the family or the rights we have not been moved to grant to the teaghlach or the household are in any way entirely contingent and dependent on the initial act of marriage which it is proposed to allow to be changed in a very limited way.

Glacaim le roinnt mhaith a bhfuil ráite ag an Seanadóir Higgins, ach caithfidh mé a rá gurb é an bunbhrí a bhí leis an bhfocal "teaghlach" ná an áit timpeall na tine i dteach tuaithe agus go mór mhór ina suí timpeall na tine na daoine a bhain leis an teach sin — athair, máthair agus clann — ag caint agus ag comhrá ar an teaghlach.

The original meaning of the word "teaghlach"— I want to make myself clear bilingually — is the area around the fire where members of the family and others who may have been in that house at the time sat and conversed. There were no monstrous distractions then such as there are now to command silence. That is the basic meaning of the word "teaghlach". Then its meaning broadened. Not necessarily on marriage, but in order to have a "teaghlach" there would have to be people. In the natural course of events, without going too far semantically into an imaginative situation — and this is the accepted interpretation of what is intended here — there would have to be a father, a mother, a family that was created by the association of a man and a wife. That is the basic association. The English version incidentally is "family". They did not call it "household" in the Constitution and I am quite sure that there were very authoritative experts drafting this Constitution, both in English and Irish. I am quite sure also that what happened although I have no definite information on this, was that the English was drafted first and that it was translated into Irish.

I find myself at variance here with some of the translation of the wording of Article 41. Article 41 refers to:

...rights, antecedent and superior to all positive law.

The translation of that in Irish is not quite accurate. It says:

...agus gur foras morálta é ag a bhfuil cearta doshannta, dochlóite is ársa agus is airde ná aon reacht daonna.

"Reacht daonna" a deirtear agus, má aistrítear an Béarla atá ar an taobh thall, ar an leathanach taobh thall, séard atá ráite ann "superior to all positive law". Anois, atá difríocht anmhór idir "positive law" agus "reacht do anna". Positive Law, dá gcuirtí an Ghaeilge is cruinne agus is cirte air, séard a déarfá "aon dlí dá dhearfa é" agus ní hé sin atá ráite ach "aon reacht daonna" agus, mar adúirt mé cheana, taimidne anseo ag iarraidh reacht daonna a achtú, mar is daoine daonna sinn atá ag déanamh suas Sheanaid Éireann. Agus sin é atá i gceist annseo, ach ní aontaím leis gur treise an focal "household" ná "family". Measaim gur cruinne "family" a aistriú ar "theaghlach", gur fearr é ná "household". Agus, measaim má athraíonn tú fó-alt a trí a dhearbhuíonn nach féidir ionsaí a dhéanamh ar an bpósadh go bhfuil tú ag tógáil ó chinnteacht agus ó dhearfacht agus ó dhochloíteacht Airteagal 41 agus go bhfuil tú á dhíoshlogadh, that you are minimising and taking away a great deal of what is intended in Article 41.

An rud ba mhaith liom a dhéanamh, díreach, ceartú a dhéanamh ar rud adúirt an Seanadóir de Brún, mo chara anseo. Dúirt sé gur ghlac muintir na hÉireann leis an Bhunreacht i 1937. Níor mhaith liom an ócáid a ligean tharaim gan smaoiniú nár ghlac muintir na hEireann uilig leis i 1937. Ghlac muintir na Fiche Sé Chontae leis, agus b'fhéidir, dá mbeadh glactha ag muintir na hÉireann uilig leis i 1937 nach mbeadh na deacrachtaí atá againn anois againn.

Ba mhaith liom teacht ar ais arís le freagra a thabhairt ar mo chara an Seanadóir Rogers. Glacaim lena bhfuil ráite aici. Ach sílim go gcaithfear a ghlacadh, freisin, nuair a labhraímid faoin dtír seo go labhraímid faoi oileán na hEireann agus gurb é oileán na hEireann atá i gceist againn. Aontaím go bhfuil difríocht idir an dá rud. Bheadh sé níos cruinne uaim a rá "Muintir Phoblacht Eireann", an chuid seo den tír a bhfuil smacht aige ar a chuid dlíthe agus a chuid riachtanaisí féin. Glacaim leis an rud atá ráite ach ní ghlacaim ar fad leis an eireaball a chuir sí leis. Dúirt sí dá gcuirfí os comhair mhuintir na hÉireann uile é nach mbeadh, b'fhéidir, na deacrachtaí againn atá againn inniu. Níl mé chomh cinnte faoi sin. Níl mé cinnte dá gcuirtí Bunreacht na Éireann faoi phobalbhreith an uair úd nach mbeadh móramh ag an mBunreacht. Tá tríocha dó chontae níos mó agus níos láidre ná fiche-sé chontae; agus is dóigh liom, fiú dá gcuirtí é chuig pobal uile na hÉireann ag an am sin, go nglacfaí leis an Bhunreacht ag an am sin.

To go back for a moment to Senator Ross's question which I overlooked a few moments ago. He asked if there were any plans for a general review of the Constitution, and in particular a review to look at the removal of denominational clauses. I do not accept the inference that the clause we are now proposing to remove is necessarily a denominational clause. As the Senator knows, most, if not all, of the denominations in our country have difficulties accepting the idea of divorce, as the Members of the House have. A constitutional provision that reflects an aspiration commonly held that we should so order our affairs that nobody would want to get a divorce, cannot be regarded as denominational. However, I do not think that that was the main thrust of his request. I do not have any plans at the moment for a general review of the Constitution.

In conversation yesterday with another Member of the House who is a dear friend of mine, we looked at some of the difficulties that arise from comparisons of the Irish and English texts. I ventured the opinion that even to modernise the Irish, to bring it to the form in which it is used today, would be a major and most hazardous undertaking, and one which I would find rather distasteful because I am bound to say that since De Bhaldraithe has got at the language it has never been the same. Happily, the Constitution pre-dates that particular interference with the language, but then in matters of the kind I am probably too much of a traditionalist for Senator Ross. The answer is that we do not have any plans for a major review of the Constitution.

In relation to Senator de Brún's point, the simplest answer to what could turn into a very complex and extremely enjoyable debate is that an explicit provision providing for divorce in limited circumstances is not necessarily in conflict with the provisions requiring the protection of marriage or the recognition of the family. I will go a little further — this is a nonlegal opinion — and say that in the obligation undertaken by the State to protect the family against attack, which in Irish is "a chosaint ar ionsaí", there is room for debate as to whether "to protect" is exactly the same as "a chosaint". Protection seems to mean a good deal more than chosaint, defence. However, we will not go into that; but it shows that there are other areas for discussion which have probably been resolved at the level of interpretation.

I do not think that there is conflict between the provision for a limited form of divorce and the obligation to protect marriage. As has been pointed out, it seems that provision for divorce in restricted circumstances could quite legitimately in the circumstances of today be represented and held to be a form of protection for the family which it might not otherwise be. Part of the problem we are dealing with today is the fact that in some cases people do not bother to get married, as has been pointed out in the House. In other cases people after a certain point act as if their marriage has never existed. When we bear those factors in mind, provision in restricted circumstances for divorce in order to provide a resolution to that problem can be quite legitimately presented as protection of marriage.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Aontaíodh alt 1.
Section 1 agreed to.
Aontaíodh alt 2.
Section 2 agreed to.

Amendments Nos. 2 and 3 are alternatives and amendment No. 6 is related. Amendments Nos. 2, 3 and 6 may be discussed together.

Tairgim leasú Uimh. a 2:

I gCuid I, leathanach 5, líne 28, "go bhfuil teipthe ar phósadh," a scriosadh agus "go bhfuil an pósadh tar éis cliseadh," a chur ina ionad


I gCuid II, leathanach 7, líne 15, "a marriage has failed," a scriosadh agus "there has been a breakdown of the marriage," a chur ina ionad.

I move amendment No. 2:

In Part I, page 4, line 28, to delete "go bhfuil teipthe ar phósadh," and substitute "go bhfuil an pósadh tar éis cliseadh,"


In Part II, page 16, line 6, to delete "a marriage has failed," and substitute "there has been a breakdown of the marriage,".

Amendment No. 2 is to substitute for "a marriage has failed", the first criterion in the Bill on which the court would have to be satisfied, with the words "there has been a breakdown of the marriage,". My reason for putting forward this amendment are somewhat technical. They are legal reasons which I put forward with great seriousness. I am not happy with the phrase "a marriage has failed". There are difficulties which I will try to explain to the House. There are strong reasons for favouring either precisely the formula which I have put in the amendment, or a variation of it, that there has been a breakdown of the marriage.

This might be the appropriate moment to comment on the similar amendment being proposed by Senators Conway and McAuliffe-Ennis, that is, that there has been "an irretrievable breakdown of the marriage". Because of the later provisions in the Government's proposal for the Schedule, the word "irretrievable" is not necessary and does not add anything, since the next requirement on which the court must be satisfied is that there is no reasonable possibility of reconciliation between the parties to the marriage. The words are "no reasonable possibility", and that will constitute the concept of an irretrievable breakdown; and then you would have to be satisfied that that would be irretrievable by being satisfied that there is no reasonable possibility of reconciliation between the parties to the marriage. Therefore, there is no conflict between the amendments; but it would not be necessary to have in front of the word "breakdown" in the first case the word "irretrievable", the next precondition which the court would have to be satisfied about.

I come to my worry and concern about the use of the word "failed". I understand, and this has been repeated by Government Ministers, that the word was chosen because of its finality. Fair enough, I can understand the political concern to make sure that people voting on it would be reassured, in Senator Ferris's terms, by a word that imports finality. But we are amending a Constitution and we must be extremely clear about the consequences of the words we use. Even this reason given for using the word "failed", that it is the most final word that could be used by the Government in the context, is not really reconcilable with the second precondition in the Government's Bill.

After setting out "that the court must be satisfied that a marriage has failed" you then have a second condition, "the failure has continued for a period of or periods amounting to at least five years." This implies that you may not have a continuous period of five years — in other words, you may have a period of the marriage having failed and then, presumably, the marriage "unfails" for a while and then you have another period of the marriage having failed. Therefore, the word has not got that kind of finality. That does not worry me. We should not necessarily be looking for that kind of finality, because the court must be satisfied that a succession of preconditions exists, and it is stated explicitly that the court must be satisfied that there is no reasonable possibility of reconciliation between the parties to the marriage. That is the finality that I am prepared to say is what is required for the purposes of this amendment. The political desire for certainty and finality flows from the requirement on the courts to be satisfied of the other conditions, particularly that there is no possibility of reconciliation between the parties.

Do words matter in this way? I would welcome some clarification from the Minister as to what advice is available to him on the concept of failure and the use of the word "failed". It is not a concept which is used in any other country that I am aware of in relation to separation or divorce legislation. Certainly, our courts have not used this concept in the past in relation to judicial separation and it is not a concept that is discussed in the textbooks on family law. When we talk of the marriage relationship — this is the approach of the courts in other jurisdictions — the emphasis is on the marriage relationship. It is the relationship that is being looked at and examined. Therefore what the courts look to and seem to have established in divorce legislation is the breakdown of that relationship. The breakdown flows, in a sense, from the fact that you are talking about a relationship and whether it has broken down. In that context the concept of irretrievable breakdown has evolved. Is the breakdown irretrievable or is it temporary? It is irretrievable if there is no possibility of reconciliation between the parties. That is the logical sequence of the way in which the matter has been considered, the jurisprudence which exists in the courts of many countries on this point.

By choosing to insert into the Constitution a word which does not have a track record in this area, a word which has been chosen for its political finality, for its political thrust — I understand that we have to have a referendum and the people have to vote and I understand the problem the Government face in that — there is a real danger that this concept of failure will, of necessity, have to be construed by the courts with great seriousness, that it will have to be construed de novo as a new concept by the courts. It will require that the court which must establish failure engages in a very strict and very intrusive examination of the marriage and of the state of the relationships between the parties at that point. This intrusive and strict investigation will be required at the divorce stage even if and notwithstanding the fact that there has been an earlier judicial separation. As the House is aware, the intention is that parties will have had to have already obtained either a judicial separation or have made a separation agreement a rule of court, before being able to apply for a divorce. Indeed, there will be a gap of two years before the party will be able to apply for a divorce.

Notwithstanding the fact that there was a judicial separation or a separation agreement, the court which is considering the divorce application will have to engage in a very strict examination, first to establish if the marriage has failed and second, to establish — it is the subject of another amendment so I will not dwell on it — that the failure has endured for a period or periods of not less than five years. I want to emphasise the point that it is the court which is considering the divorce application which will have to be satisfied that the marriage has failed, which will have to investigate in order to form that view, as required by the Constitution, that the marriage has failed. That has to be very carefully considered by this House. It is the essential reason why I am arguing that the use of the phrase in the amendment which I am proposing will avoid some of the unnecessary and very difficult consequences, which I am about to outline, which flow from that requirement of the court establishing this precondition of marriage failure at that stage.

I am suggesting that, if the language used is that there has been a breakdown of the marriage, this will allow the court to fit in with the earlier procedures which have been adopted or in which the parties have been involved because, curiously — I want the Minister to clarify this when he responds to the amendment — the Government appear to have accepted the concept of breakdown at the stage of judicial separation. This concept was recommended by the Joint Committee on Marriage Breakdown. They examined in detail and unanimously recommended the concept of irretrievable breakdown in the context of judicial separation. That is where the report deals with the matter at length and then, as I will show, the report also recommends that this be the basis for divorce legislation. It does it by linking back to the analysis in the context of judicial separation.

I want to refer to the relevant parts of the report of the Joint Committee on Marriage Breakdown. The first reference starts at page 49 of the report, paragraph 7.3.8:

1. The Court should grant a decree of Judicial Separation if it is satisfied that the marriage of the person to his or her spouse has irretrievably broken down. Irretrievable breakdown should be the one overall ground for the grant of a decree of Judicial Separation.

2. In considering whether or not a marriage has irretrievably broken down, the court should be satisfied that such a breakdown has occurred if the applicant proves one of the following:—

Then it sets out a number of grounds which would constitute irretrievable breakdown. Subsequently, when the Joint Committee on Marriage Breakdown considered the divorce issue they again recommended that the divorce legislation be based on the concept of irretrievable breakdown. Page 90 of the report, paragraph 7.8.34 reads as follows:

The constant theme in the opinions and observations of this Committee has been the need, as far as possible, to reduce the adversarial element in marriage breakdown. The Committee consequently feels that any divorce law should be based on the concept of marital breakdown. The Committee believes that this approach would reduce the acrimony and bitterness and would assist separated parents in the continuing relationships between themselves and their children.

Paragraph 7.8.35 reads:

The Committee has already discussed the concept of irretrievable breakdown in the context of judicial separation. If judicial separation and the dissolution of marriage are both to be granted on the basis of irretrievable breakdown, then it would appear logical that there should be some link between the two reliefs. The Committee believes that the grant of a decree of judicial separation should be a first step, whereby a person could apply after a fixed period of time, for the granting of a judicial separation, for a decree of divorce.

They go on to say this approach would have a number of advantages. The Government appear to have accepted that broad approach of the two stages, requiring either judicial separation or a separation agreement which is made a rule of court, a period of time and then the application for divorce. What is different and what we are looking at very closely is the wording which the Government propose to put into the Constitution, that the court must be satisfied that the marriage has failed. Irretrievable breakdown was the recommendation of the Joint Committee on Marriage Breakdown, both for judicial separation and for any possible divorce legislation. Also, the Law Reform Commission recommended irretrievable breakdown as a ground for judicial separation.

In their report on divorce a mensa et toro and related matters, published in 1983, the Law Reform Commission examined the existing grounds for a judicial separation which are on the basis of establishment of a matrimonial offence, cruelty, adultery or, more rarely, unnatural practices, that you must establish a matrimonial offence in order to obtain a judicial separation. Having looked at the arguments for and against extending that, the Law Reform Commission, at page 46 of the report stated:

After much consideration, we have come to the conclusion that the better approach would be for the legislation to include breakdown of marriage as an extra ground for legal separation, to supplement the other grounds such as those of adultery and cruelty.

You, therefore, had the Law Reform Commission recommending the addition of breakdown of the marriage as a ground, and you had the report of the Joint Committee on Marriage Breakdown in effect proposing the one ground of irretrievable breakdown but showing the components from which it could be inferred that there was irretrievable breakdown, including adultery, cruelty and periods of separation. The joint committee in the report added a final ground which I think I should refer to in identifying the grounds which would allow for inference of or the court to conclude that there was irretrievable breakdown, that was at ground (f) and I quote:

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 the discussion paper which the Government published with the Tenth Amendment of the Constitution Bill referring to both the conditions which it would prescribe, the five years living separately and also other reforms which the Government proposed, it is clear that the Government accept the concept of breakdown as being the basis for judicial separation. This is referred to at paragraph 12 of the discussion paper — the statement on Government's Intentions with Regard to Marriage, Separation and Divorce, issued by the Department of Justice. Paragraph 12, I think I should quote in full because I have given the context to it. It is as follows:

In conjunction with the changes in the procedure for judicial separation, changes will also be made in the law providing for judicial separation, the present grounds for which are cruelty, adultery or unnatural practices. In considering the changes to be made account has been taken of the recommendations made in the Law Reform Commission Report on Divorce a mensa et toro and Related Matters, and in the Report of the Joint Committee of the Oireachtas on Marriage Breakdown. The additional grounds now proposed are desertion, including constructive desertion, viz. conduct on the part of one spouse that results in the other spouse leaving and living apart; and separation for three years, or separation for one year with the consent of the respondent.

The final, and more general, ground proposed by the Committee, viz. that such other facts and/or reasons exist or existed which in all the circumstances make it reasonable for the applicant to live separate from and not cohabit with the other spouse, has not been adopted by the Government. The Government believe that the above grounds cover all appropriate cases, and that the wording proposed by the Committee in this instance is unduly vague.

The Government, therefore, accept that breakdown of the marriage, indeed what has been characterised as irretrievable breakdown of a marriage by the joint committee, will be the basis for judicial separation. I may say that when we come to discuss the Government's Bill proposing to amend the law in relation to judicial separation I will certainly be arguing not necessarily for the precise wording of the additional provision which the joint committee recommended but for the need for that provision. I do not want to get into that ground at the moment but I believe it is necessary to have a provision which takes account of the case of somebody who is in a situation where the marriage has broken down but in the case of the dependent spouse she cannot afford to separate. There is no adultery, no cruelty, no unnatural practice and she cannot afford to separate. That is not catered for in the Government's proposal. It was the essence of why the joint committee recommended the additional ground. That is, in a sense, a different point and we will have a different day and occasion to argue that.

The essence of the points I am making and which I have to make in this rather lengthy way is that the Government accept breakdown of the marriage as the basis for judicial separation and will be bringing in legislation accordingly. We must, therefore, reconcile this with the new concept which is being introduced in the constitutional amendment, a new concept that the court must be satisfied that the marriage has failed. What worries me, what I would like the Minister to respond in some detail to, is why it is felt desirable to have what in fact will be three separate tests before a person can obtain a divorce. I hope, as I set out what these three separate tests are, that I will make it perfectly clear that not only is this a restrictive form of divorce but it is the most restrictive form of divorce that I know of. I do not claim to be an expert on divorce everywhere in the world but, cumulatively, the requirements which are being set make it an extremely restrictive form of divorce. What I really want to come to is whether it is legally appropriate to insert this particular provision in the Constitution. The reason I say it will require three separate tests is because the ground for judicial separation is based on marriage breakdown. That marriage breakdown would include the parties living separately. A separation agreement in which the parties agreed to live separately, and did live separately, would, in effect, be based on marriage breakdown.

There will then be the further condition which the Government have said that they will prescribe and that will come in under pre-condition (iv), any other condition prescribed by law having been complied with. The Government have said they will require five years separation before a divorce can be applied for. That is at paragraph 14 of the statement by the Government. I should like to quote the precise provision. It says:

A period or periods of not less than five year's separation will be required before an application for divorce will be entertained.

Again, that may need to be clarified. Does "entertained" mean before somebody can commence proceedings for divorce? There is always a certain time lag after one commences proceedings until one gets a date for the hearing in court. Are we talking about five and a half or even six years, or is it the Government's intention that the court cannot have the hearing unless there is five year's separation? That is the second condition.

So one has to have establishment of breakdown either by the judicial separation or the separation agreement. One then has to have the test of five year's separation before one can commence an application for a divorce. Then one has to have a third test, the establishment of failure of the marriage. That cannot be assumed from the earlier proceedings. It cannot be assumed from the fact that there is a judicial separation because that judicial separation was based on other criteria, a different concept in effect. The courts must consider extremely seriously the task which has been placed on them by the Government's proposal. It is the court which is proposing to grant the divorce which must be satisfied and it must be satisfied that the marriage has failed. What worries me is that after parties have been through that whole business of either having a judicial separation or a separation agreement and have lived separately for five years that they still have to have a court investigate that their marriage has failed. That court must satisfy itself that the marriage has failed. With all humility as a lawyer, and without trying to predict in any doctrinaire or dogmatic way what courts will do, I say there is a difference. Naturally, the courts having regard to the legislation interpret and apply the legislation but if it is a word in the Constitution, if it is a pre-condition which we write into the Constitution that the court must be satisfied about before it can grant a decree then it becomes a matter which the judiciary will take extremely seriously. Judges, hearing applications for divorce, will take extremely seriously that no matter what has gone on before, or how long, or what the situation is, they must establish that the marriage has failed. Therefore, they must carry out an investigation for that purpose.

I submit that it is very intrusive and not socially desirable or necessary that we load this further provision of an examination as to failure at that stage and that the court must examine and satisfy itself in relation to the state of the relationship between the parties in order to conclude that the marriage has failed. It is difficult not to believe that this will involve a very intrusive invasion of the privacy of the parties. For a start these people who have gone through an earlier stage of either a judicial separation or a separation agreement and who have lived apart for five years will not have the court before whom they come with a divorce application accept that the judicial separation and the five year separation constitute failure. The court must be satisfied and it must investigate to be satisfied. It must examine the marriage relationship and see what happened etc.

The courts have in the course of developing the case law on family law identified a constitutional right to marital privacy. That right was first identified in a judgement of the Supreme Court in 1973, the case of McGee against the Attorney General. This is a case which I am sure Members of the House are familiar with because it was the successful challenge brought by Mrs. McGee to the prohibition on the importation of contraceptives. When the two Houses of the Oireachtas had failed to grapple with this problem it was the Supreme Court through this judgement which concluded that the total prohibition on the importation of contraceptives was repugnant to the Constitution as it failed to secure and safeguard the marital privacy of Mrs. McGee and her husband and other married couples in the State.

There is a passage from the judgement of Mr. Justice Walsh which is relevant to the point I am making on the intrusive and unnecessarily strict examination which would be required of the court under this proposal and I quote:

The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid having children by use of contraceptives, it is a matter peculiarly within the joint decision of the husband and wife and one into which the State cannot intrude unless its intrusion can be justified by the exigencies of the common good. The question of whether the use of contraceptives by married couples within their marriage is or is not contrary to the moral code or codes to which they profess to subscribe, or is or is not regarded by them as being against their conscience, could not justify State intervention.

Similarly, the fact that the use of contraceptives may offend against the moral code of the majority of the citizens of the State would not per se justify an intervention by the State to prohibit their use within marriage. The private morality of its citizens does not justify intervention by the State into the activities of those citizens unless and until the common good requires it. Counsel for the Attorney General did not seek to argue that the State would have any right to seek to prevent the use of contraceptives within marriage. He did argue, however, that it did not follow from this that the State was under any obligation to make contraceptives available to married couples. Counsel for the second defendants put the matter somewhat further by stating that, if she had a right to use contraceptives within the privacy of her marriage, it was a matter for the plaintiff to prove from whence the right sprang. In effect he was saying that, if she was appealing to a right anterior to positive law, the burden was on her to show the source of that right. At first sight this may appear to be a reasonable and logical proposition. However, it does appear to ignore a fundamental point, namely, that the rights of a married couple to decide how many children, if any, they will have are matters outside the reach of positive law where the means employed to implement such decisions do not impinge upon the common good or destroy or endanger human life. It is undoubtedly true that among those persons who are subject to a particular moral code no one has a right to be in breach of that moral code. But when this is a code governing private morality and where the breach of it is not one which injures the common good then it is not the State's business to intervene. It is outside the authority of the State to endeavour to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire.

In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State.

The relevance of quoting that passage is that that is the present situation, which is the right to marital privacy which has been recognised. From the way in which this proposal is drafted it is going to be extremely intrusive on any couple.

There are three tests. First they have to obtain a judicial separation when they have to satisfy the court before whom it is obtained that one of the grounds, including breakdown of the marriage, exists. Second they have got to enter into a separation agreement and be living separately for the intervening period before an application is made for divorce. It will be a precondition of the second test that they will have lived separately for five years. Third the court which is to examine the matter and hand down the divorce decree must examine and satisfy itself that the marriage has failed. It is a raking over again, back to square one for the person who has left their husband or wife ten years before. Can they satisfy the court that the marriage has failed? What is the nature of the examination which is going to take place?

I am putting forward this amendment as fitting into the context in which we are looking at this. The court would have to be satisfied that there has been a breakdown of the marriage — we will deal in the next amendment with the question of the five year period and living apart for two years — but there is also no reasonable possibility of reconciliation, that the other conditions prescribed by law have been satisfied and proper provision has been made for any dependent spouse and children. It is true, as was mentioned this morning in the context of the debate on the first amendment, that we do have a very different situation from the situation in a number of other countries. Most countries have written constitutions but most of them have had the good sense not to have a prohibition of divorce in their constitution so they did not have to face this problem of moving from a prohibition of divorce to allowing for divorce. A significant number of countries which did have early divorce legislation moved from having divorce on the basis of matrimonial offences to having it on the basis on the concept of breakdown of the marriage.

It is worth examining some of the issues which arose in moving from one concept to another because they are relevant to this new constitutional test of failure of the marriage and what that will mean and imply. The debate which took place in the United Kingdom on this issue prior to a change in the divorce legislation from divorce based on the establishment of marital offences to one based on irretrievable breakdown is very well summarised in Cretneys "Principles of Family Law", fourth edition, 1984. The account shows the very public debate which took place in the early sixties. These had been a Private Members' Bill put forward in 1963 by Leo Abse which in itself was quite restrictive. It proposed moving from the establishment of matrimonial offences to providing for divorce after seven years separation. Therefore, in 1963 a seven year separation was considered by a liberal Labour lawyer to be a very reasonable proposal. Because of the debate at the time and the public discussion which had followed from the introduction of that Private Members' Bill the then Archbishop of Canterbury decided to appoint a committee to investigate the formulation of a principle of breakdown of marriage. There was a report of that committee entitled "Putting Asunder" which was published in 1966. It was part of the preliminary debate in that country leading ultimately to the Divorce Reform Act, 1969. I will quote a summary of the thrust of that report from the fourth edition of Cretney, at page 104:

The report favoured, as the lesser of two evils, the substitution of the doctrine of breakdown for that of the matrimonial offence. The primary and fundamental question should be whether "the evidence before the court revealed such failure in the matrimonial relationship, or such circumstances adverse to that relationship, that no reasonable probability remains of the spouses again living together as husband and wife for mutual comfort and support?" If it did, the Committee thought the legal tie should be dissolved. They accepted that a divorce decree should be seen simply as a judicial recognition of a state of affairs with a consequent redefinition of status.

The Committee considered that the court should carry out a detailed inquest into "the alleged fact and causes of the `death' of a marriage relationship. It would have to be made possible for the inquire effectively into what attempts at reconciliation had been made, into the feasibility of further attempts, into the acts, events, and circumstances, alleged to have destroyed the marriage, into the truth of statements made (especially in uncontested cases), and into all matters bearing upon the determination of public interest."

Moreover, the Committee proposed that the court should be obliged to refuse a decree (notwithstanding proof of breakdown) if to grant it would be contrary to the public interest in justice and in protecting the institution of marriage. This bar should, the Committee thought, apply where "to put it crudely — it just would not do to let the petitioner get away with it," and also in cases where both parties had combined to deceive the court. The court should also refuse a decree if the petitioner failed to satisfy the court in the matter of maintenance for the respondent and her children, and failure was against the public interest.

The reason I thought it useful to quote that is that most of the issues which the Archbishop of Canterbury's committee examined are exactly the issues we are now looking at very properly in the context of this Bill. They were all issues which the Archbishop's committee concluded would be necessary for a court while examining the concept of marriage breakdown with a view to allowing dissolution.

We are substituting "breakdown" for "matrimonial offences". It is interesting to note what happened in the consideration of the Archbishop's committee and their very detailed proposals as to the kind of investigation which the courts should carry out and the response of the British Government at the time, leading up to the proposals in the 1969 Act. On receipt of the Archbishop's committee's report, the Lord Chancellor referred the report to the Law Commission, equivalent to our Law Reform Commission. The Law Commission examined the issue, and in a report entitled Field of Choice recommended what a good divorce law should seek to achieve, and I quote from the report:

1. To buttress rather than to undermine the stability of marriage and

2. When regrettably a marriage has irretrievably broken down to enable the empty legal shell to be destroyed with a maximum of fairness, the minimum bitterness, stress and humiliation.

The only really substantive difference which the Law Commission had with the report of the Archbishop's committee on how this should be done was in relation to the nature of the investigation to be carried out by the courts which would hand down the decree of divorce. This is referred to at page 106 of Cretney:

The Commission therefore favoured reform; but it did not accept the proposal made by the Archbishop's group that divorce should be available only after the breakdown of the marriage had been established by a full inquest into the marriage. The Commission thought that such an inquiry into causes might be necessarily humiliating and distressing to the parties, so that one of the criteria for reform would be broken. Moreover, it would be impracticable, without a vast increase in expenditure of money and human resources, to have an inquest in all cases.

The Commission put forward three possible alternatives on which reform might be based. Discussions took place between representatives of the Commission and the Archbishop's group, and agreement was reached on the principles ultimately embodied in the Divorce Reform Act 1969: the basic principle was that breakdown should be the sole ground for divorce. However, breakdown was not to be the subject of a detailed inquest by the court; instead it was to be inferred either from the commission of certain facts akin to the old matrimonial offences or (i) two years' separation if the respondent consented, or (ii) five years' separation if he did not.

I am sorry to have delayed the House by quoting at some length, but there is a purpose behind it. What the Archbishop's committee, the Law Commission and the British Government were considering was, first, the application to a court for a divorce decree and the kind of examination the court should undertake. The Archbishop's committee wanted an inquest, the most detailed examination, at that stage. The Law Commission felt this would be intrusive and wanted to have an extension of the matrimonial offences so that the concept of irretrievable breakdown would be inferred if there was establishment of adultery, cruelty, unnatural practices followed by a period of separation. Those proposals for irretrievable breakdown are what the Irish Government accept for a judicial separation. That is in the Government's statement of intentions.

I do not see the need or the basis for or the public interest in having a five year separation and a requirement that the court would satisfy itself that there is no possibility of reconciliation and that provision be made for the children. Why must we also have an intrusive raking over of the marriage relationship to establish again, but by a different approach and concept, that the marriage has failed? There does not seem to be any desirability either from a legal or social point of view to do that. The substitution of the amendment which I have put forward asking that the court be satisfied that there has been a "breakdown" of the marriage for the words now in the Bill would mean that the court could have reference to the criteria for the judicial separation. In other words, at the divorce stage the court could say: "This is a case in which the parties have already obtained a decree of judicial separation based on the breakdown of the marriage". The court could say that it was two years ago at minimum, three years, five years, ten years ago. The court would have to be satisfied on the other criteria, the period of separation, no possibility of reconciliation, but at least there could be an assessment by the court in accordance with established jurisprudence. Here we are introducing not only an additional test but an entirely new basis for the court to examine. Because this is a constitutional precondition I find it difficult to believe that it could be any less exhaustive an examination than the Archbishop of Canterbury's committee referred to in the context of the "Putting Asunder" breakdown.

Some Senators may be confused with the issues I am putting forward. It might be asked if I am suggesting that we have a less stringent test here than the British public and Government considered to be necessary in the late sixties. I am emphasising that our test is already a great deal stricter because it has several stages to it. We do not have one test, we have three. We have the initial test at the stage either of judicial separation when it must be established that the grounds which now include breakdown of marriage exist, or that the parties by agreement say that their marriage has broken down and that they will separate and can make their separation an order of the court. That is the first definite hurdle. Then there are the prescribed conditions of five years living separately before a court can entertain an application for a divorce.

Then there is this third test. It is at that stage that it seems to be unnecessarily restrictive, unnecessarily intrusive, very expensive potentially and time-consuming for a court to satisfy itself at that stage that a marriage has failed and certainly an additional burden on the parties in question. At least in putting forward my arguments on this amendment I hope I have brought it home just how extremely restrictive and burdensome this Government proposal is to anybody who might seek to apply in the future for a divorce. One will need enormous stamina and unless we are very careful one will need to be quite wealthy to do be able to go through the whole process. I want to emphasise that I am not happy with the concept of "failed" and I await the Minister's response on that point.

I have listened with great interest to what Senator Robinson has said in this regard. In what she has submitted to us she has wandered beyond the net point of amendment No. 2 and I should like to come back to the net point of the amendment. The net point is that the word "failed" should be removed and should be replaced by "breakdown". Senator Robinson has quoted Cretney on marriage law. She is attempting to put in the word "breakdown", that the meaning of "breakdown" is a marriage that has failed and of which there is no reasonable possibility of reconciliation. It seems that if she attempts to put in "breakdown" the two elements that are in the Cretney exposition of what "breakdown" is are both here in the Schedule. The element of failure is there and the element of there being no reasonable possibility of reconciliation. One of them is there under paragraph (i) and the other under paragraph (iii) in Part II. It seems that the authorities Senator Robinson has quoted merely referred to the term "breakdown" as being a telescoping together of two factors that are already in the Schedule.

What I was seeking to make clear to the House is the cumulation of tests on different premises that our courts will have to be satisfied about if this Government proposal goes through. The Government in their statement accompanying the constitutional amendment have accepted breakdown of the marriage as recommended both by the Joint Committee on Marriage Breakdown and the Law Reform Commission as the basis for judicial separation. That breakdown is something that is inferred from establishment of the old matrimonial offences or a period of separation.

It does not say that in the Bill I have here. I find no reference to matrimonial offences in it.

In the constitutional amendment? I am talking about the Government's paper on changes in the law on judicial separation. I quoted paragraph 12 of that.

The Senator will remember that when we were discussing the report on the Joint Committee on Marriage Breakdown I objected to the conjunction of the two as being dangerous. If it is in any Government legislation I would be similarly objecting to it, but it is certainly not in the Bill before us.

I do not think the Senator can have it both ways. The Government have accepted the recommendation of the Joint Committee on Marriage Breakdown and the recommendation of the Law Reform Commission that there should be an extension of the grounds for a decree of judicial separation. At the moment the only grounds are establishment of a matrimonial offence. The joint committee accept all but the last ground, which they believe is too broad and too open-ended. They accept desertion, including constructive desertion, and they accept the separation for three years or, alternatively, separation for one year with the consent of the respondent. That is moving to breakdown of marriage. That is exactly what breakdown of marriage means in every jurisdiction which uses the term "breakdown of marriage". That is what the joint committee and the Law Reform Commission have called it. That is what it is.

What I am very anxious to emphasise is that the court which grants a decree of judicial separation must be satisfied that the grounds in the legislation exist before a decree of separation is handed down. We are not talking about one test. The reason I put forward this amendment is I want us to have breakdown as the basis on which the court would act, provided it is satisfied that the breakdown is one which has resulted in the marriage relationship having irretrievably ended because there would be no reconciliation.

Failed with no hope of reconciliation.

We are dealing with technical terms. Courts do not examine the failure of a marriage in any jurisdiction at the moment in that sense. They look at whether there has been a breakdown of the marriage and the grounds on which breakdown can be established. To establish failure of a marriage is a totally individual inquest into that marriage. It appears that the House may decide that we will have all three stages. We will have establishment of breakdown of the marriage to get a judicial separation; we will have five years living separately, and then there will be an inquest into that marriage to see whether it has failed or not. If that is what the House wants, then cumulatively that is at the moment what the House will get in the Government proposal.

I do not want to attempt to indicate what is the meaning of the Government's intention. I did not read that into it. If the Minister could clarify this point for us it might help the debate forward.

I have to point out in a preliminary way that whatever word we use, whether it is "failure", which I think it should be, or "breakdown" or any other word, the courts here are themselves going to have to develop their own approach to it and give it a meaning which we and the people must indicate to them. We must give them guidance as to what that means.

The Government are proposing that there should be strict terms before a divorce is granted. The people will require that we have a series of tests, that we will be satisfied on a certain number of points before a decree of dissolution is granted. Senator Robinson, apart from anything else, does not want the terms to be so strict and does not want so many tests to be applied before the decree would be granted. That is the fundamental difference in degree and perhaps there is room for argument about that.

It is wrong to say that the Government have accepted breakdown as being the grounds for separation. There is nothing in paragraph 12 of the Government's statement that says anything at all about breakdown. Yes, the Government proposes to extend the grounds on which a judicial separation will be granted but we do not define that as "breakdown". In a sense Senator Robinson has a case because she claims "breakdown" is what I say it is and since that includes what you are doing you are accepting breakdown. That is not an enlightening way to make the argument. It is not necessarily what breakdown means. Whatever term we found the grounds on, the courts would have to arrive at a view about what that means. There is no point in using a word which has a track record in other jurisdictions because we will have to make up our own mind but equally, there is no point in using a word which does not have a track record in any other jurisdiction because we would have to develop our own approach and give our own meaning to it.

Senator Robinson mentioned at one point in her discussion on the Archbishop's committee and the commission a definition of "breakdown" which included "such failure in the marriage relationship". I conclude that there is not, even in the commentaries in that jurisdiction, a completely unambiguous concept of what "breakdown" means nor, indeed, a completely unambiguous concept of what "failure" means. We have chosen "failure" for the reason Senator Robinson mentioned at the very beginning. We take the view that there is a certain finality about "failure" that reflects the intention we have of allowing divorce in certain restricted circumstances.

We provide for a number of tests. Certain conditions have to be satisfied before a judicial separation can be granted. We provide that a judicial separation or a voluntary agreement made a rule of court would be a prerequisite for the court to entertain a divorce application. I interpret that to mean the lodgment of notice to take proceedings with the court rather than the actual hearing by the court but we will have another discussion on that another day.

Why do we require another test before the granting of divorce? Quite simply, the granting of a divorce is a much more final act than the granting of a judicial separation. With a judicial separation or the acceptance of an agreement as a rule of court there is always the possibility — I do not say it is a likely prospect — that at some point the parties who have been separated, whether by judicial order or by their own agreement, might reconsider and reunite again. Once a decree of divorce is granted, there is no possibility that either of those parties will get together again. Indeed we require it as a condition that the court be satisfied that there is no such possibility before we allow a decree to be granted.

Given the qualitative difference between a judicial separation or the other separation agreement and a divorce it is reasonable to provide for a further test. In the interest of our general concern with safeguarding marriage, which we spoke of earlier, it would be obligatory to prescribe such a test.

However, Senator Robinson then goes on — I can understand her concern — to infer that the courts will engage in a very intrusive examination of the history of a marriage before they grant a decree of divorce. It is with some trepidation I suggest to a lawyer that perhaps one of the reasons she used for her point of view is not even relevant. I am not sure that the reference to the McGee case was directly relevant. If it is the case, and I accept the contention that it is, the courts have established a right to martial privacy. then it seems that, in examining a decree for divorce, in satisfying itself on the fact of failure in a marriage, the court could not engage in what would be an unconstitutional intrusion. The court, nevertheless, would have to adopt a procedure that would allow it, without being unconstitutional, to be satisfied that the marriage has failed.

There is a danger that the concern in that case might be exaggerated. If we look at what is required under the current grounds for the granting of a judicial separation, the court must be satisfied that there is either adultery, cruelty or unnatural practices. Depending on the case, there might not be great difficulty in the court being satisfied that there is adultery without a very intrusive examination, although there is obviously some kind of intrusion into the marriage for the courts to be satisfied. This would also be the case in relation to unnatural practices. It must also be the case if one is to demonstrate cruelty. Senator Robinson knows a great deal more about this than I do. Perceptions of cruelty differ from one case to another. The court must satisfy itself, by having a fairly detailed picture of what happened in the marriage, that these things have taken place.

The other consideration which I bring forward is that the right to privacy depends, to an extent, on the people themselves. If two people have decided that they want the court to grant either a judicial separation or to dissolve their marriage, then it is their choice to bring the circumstances of their marriage before the courts. I do not think the courts could, prima facie, be attacked for intruding into the privacy of those people because the courts would have to fulfil their constitutional obligation to look at the facts those people brought before them. If people bring the facts of their marriage before the court in order to get a constitutional right, which we are now giving them, their choice must condition our view and that of the courts as to whether there is an excessive intrusion.

We are providing a series of tests. Failure of the marriage is a concept which, in the Government's view, implies and would lay upon the courts the obligation to be satisfied as to a greater degree of finality than would be the case with breakdown. In any case, whatever term we use for it, either breakdown or failure, it is very clear that since we are in new territory the courts will have to make up their own minds about how they approach it with the guides we have given them in the Constitution.

The difficulty is that there are not any guides.

I understand that it is the wish of the House to adjourn for lunch. I do not know if this is an appropriate time to do so.

For how long?

Until 2 p.m.

Sitting suspended at 12.40 p.m. and resumed at 2 p.m.

I had risen to respond to a number of points made by the Minister in response to what I said in moving the amendment. I will try to retain each of these points, though it is much more difficult having had the lunch break.

The essence of what worries me is that I know what marriage breakdown means and how judges would approach it. The Joint Committee on Marriage Breakdown put forward the various categories and sub-categories of what would constitute marriage breakdown. The Law Reform Commission addressed the issue of marriage breakdown. I do not know what failure of a marriage is as far as the judiciary is concerned. I take the Minister's point that this is a new constitutional amendment and it is up to the judges to evolve a jurisprudence, but I question the necessity and the wisdom of that. If we have a concept that is understood and has a defined meaning, and if we are using it earlier in the stage of judicial separation, it seems to be unnecessary, unwise and potentially very intrusive to use a different concept of failure at the ultimate stage of an application to the court for a decree of divorce.

The Minister in response to my arguments — Senator Dooge also referred to this point — said that the statement issued by the Government on their intentions with regard to marriage, separation and divorce, does not commit the Government to basing judicial separation on the concept of breakdown of the marriage. I do not think we need spend too much time on this because it does not really matter whether the Government introduce into the legislation, which will be put before us sometime in the future, the word "breakdown". The point is that the Government are adopting the approach which the Law Reform Commission called breakdown, the Joint Committee on Marriage Breakdown called breakdown and which other jurisdictions called breakdown. We are into Tweedledum and Tweedledee words — words meaning what I intend them to mean. I do not mind whether the Government use the world "breakdown" but the point is if you move away from matrimonial offences — adultery, cruelty and unnatural practices — then you move to a different basis. Lawyers call that breakdown of the marriage, for example, several years of separation, desertion and other issues, but that is not really the point.

The point is that the Government are going to enlarge upon the grounds for a judicial separation by including grounds that go further and are different from proof of matrimonial offences. I welcome that. It is necessary to broaden the grounds and change the emphasis at the stage of a judicial separation, not least because it will mean that it will not be a prerequisite for a party seeking a judicial separation to establish through evidence a matrimonial offence, that one of the parties was guilty and one of the parties was not guilty. Many of us have, for a long number of years, realised that that is not desirable, it is very confrontational. If there are children of the union, it is very divisive and hurtful for them. It does not help the post-separation period if there are children and it is most desirable that, whatever the problem between the adults, both continue to have a good and supportive relationship with their children, so far as possible exercising their parental duties and responsibilities, and having a genuine and lasting relationship with their children.

It was not my intention to accuse the Government in any way of using a word like "breakdown" But the Government say: "Oh, no we are not. That is a totally false problem". The Government's paragraph indicates clearly their intention to move away from purely matrimonial offences for the decree of judicial separation, which is very much to be welcomed and is recommended totally by the Law Reform Commission and the Joint Committee on Marriage Breakdown. We need not be nervous, hesitant or embarrassed about that; it is broadly welcomed, but it means that there will be a judicial assessment that one or other of the grounds warranting a judicial separation is present at the stage that a judicial separation is obtained. Then there will be, necessarily according to the Government's prescribed conditions, two years before an application can be made for divorce. There will be the requirement of five years' separation.

Then we come to the net issue before us now. After all of that, we require a court to be satisfied that the marriage has failed. The Minister has not attempted to indicate what that will involve. I do not blame him. It is not the role of the Minister for Justice, perhaps, to try to hazard a guess as to how this will be approached. I made the point, which can hardly be contradicted, that that will be taken very seriously by our Judiciary. Indeed, I would almost be worried that, because it is still completely open as to what is involved in this concept of a marriage having failed, we may get very subjective approaches by different judges, certainly initially, and I would be concerned about what certain judges would require as amounting to it being established that a marriage had failed, whereas others might approach it in a different way.

As I say, we do not know what it means. The Constitution does not define what it means and there is no jurisprudence to help us to understand what it means. To me, it means that in addition to the other factors that have to be established, the grounds for judicial separation which I characterise as being in the realm of marriage breakdown — I do not mind whether the Minister agrees that that is the way they be characterised — the five years' separation before proceedings can be initiated and then this new concept of marriage failure are what have to be addressed.

Senator Dooge referred to what I had quoted. I accept that I quoted a great deal and it is difficult to listen to heavy quotations, but I think I should respond to the matter he referred to, namely, that I was quoting the recommendation of the Archbishop's committee in their report Putting Asunder. He said I had perhaps sought to read rather quickly where it referred to failure. On the contrary, I am quite happy to come back to this and to refer to it specifically because it is very relevant to what we are talking about. The Archbishop of Canterbury's committee in their report published in 1966 gave their approach and their definition of what amounted to marriage breakdown. I quote again quite happily:

The primary and fundamental question should be whether "the evidence before the court revealed such failure in the matrimonial relationship, or such circumstances adverse to that relationship, that no reasonable probability remains of the spouses again living together as husband and wife for mutual comfort and support?"

It was partly a realisation that that definition, that approach, involved a sort of open ended inquest into the marriage relationship that caused it to be rejected by the Government in Britain at the time. The fact that it was rejected by the British Government does not mean we have to reject it, but it helps my argument. We are not having just one court hearing in relation to divorce, which is the position in Britain. I do not want us to have similar or identical divorce legislation to Britain. I had better make it clear that I am critical of British divorce legislation. I am critical of divorce legislation in a number of countries.

I want us to have stricter provisions for access to divorce legislation here. I am in favour of the courts being positively required to establish that provision is made for dependent spouses and children, for the court to be satisfied that there is no possibility of reconciliation between the parties etc., and that there would be a required substantial period of separation before a couple could apply for divorce. That is part of our culture, part of our whole approach, part of the stability of life in Ireland, and I favour all of that strongly.

However, we have almost a three stage process here, three tests. We have the initial court proceeding where the court grants, a decree of judicial separation, or else we have the parties entering into a formal legal document, a separation agreement, saying that their marriage relationship has broken down and that they have agreed to separate and setting out the conditions of that, and making that a rule of court so that the court, will not accept it unless proper provision is made for the children etc.

Then we have the law requiring that you cannot commence the next process unless there has been at least five years of separate living by the parties concerned whichever party may move for the divorce. It is at this third stage that we are opening up a sort of inquest into that marriage. We are not saying that the court can grant a divorce only if it is satisfied that there has been a breakdown of the marriage, namely, that one of the grounds — we could specify these grounds — exists which would have been the case for the judicial separation.

The Minister said there is a particular finality about divorce and that we want it to be some sort of additional inquest. That reinforces the point I am making. If that is the view, then we really are introducing a constitutional amendment which will require the court to have a whole new inquest into the marriage relationship when there has been already a judicial separation and five years living separately. I do not think any public or social good is served by that. It is incredibly strict and intrusive on the individuals.

I quoted the McGee case which led to the identification of a fundamental right, the right to marital privacy. I did so because that is the existing situation. Obviously, if we introduce a constitutional amendment which requires a court, notwithstanding the earlier judicial separation and the five years' living separately, to establish and be satisfied that the marriage has failed, then the courts are bound to apply the Constitution. They are bound to uphold what is in the Constitution and they will do it. Therefore we will in a sense have narrowed the scope of the right to marital privacy. It will have to give way to that extent. The right is determined by a number of factors but most of all by the terms of the Constitution. Therefore, if the court must establish the failure of the marriage, it will do so.

Let me take the kind of example that would concern me, a couple who 15 or 16 years ago realised that their marriage relationship had totally broken down, entered into a separation agreement, went their separate ways and both of them are involved in a stable relationship with other people. Under the carry-over provision which the Government set they would not be required to get a judicial separation. Even if they had not a legal separation made a rule of court, they would not be required to do so. They could apply to the court.

They would be coming potentially for the first time before a court after a very long period, and the court would have to establish the failure of their marriage. It might be thought that would be done simply by looking at it in a very superficial way. I do not think we can take that for granted. The court may well have to enter into a very detailed investigation. That is one example.

Take the case of a couple who have gone through the expense and difficulty of a court proceeding, I am talking about the party seeking a judicial separation. When the Government proposals are through, that judicial separation can be on the grounds of one of the three traditional matrimonial offences or desertion, including constructive desertion, or a period of separation. That has been gone through, there has been at least a period of five years living separately and then the party applies for a divorce. It is not a matter that the court can simply take note of, that there is a judicial separation and that there have been five years of living apart etc. The court has to constitutionally satisfy itself that the marriage has failed so it has to start examining the issues in relation to that. What are the guidelines the court will look at in that regard? They are not the same as marriage breakdown; if they were why are we not using the term "marriage breakdown"? If they are the same as marriage breakdown let us rationalise and use the same term. They should be the same because we know what we are talking about when we talk about breakdown but we do not know what considerations will apply.

We have judges who have different philosophical approaches and different subjective views on this matter. Some judges are extremely conservative. People can be quite assured that none of them is a wide eyed liberal in this regard. They will all take the constitutional requirement very seriously. Whatever the beginnings of a jurisprudence on failure as required by the Constitution, it will be subjective, it will be very intrusive, strict and harrowing for those who have already been to court five, six or seven years earlier and have been living apart for a minimum of five years.

Notwithstanding the political difficulty, we are loading the whole situation quite unnecessarily. We are going beyond what Mr. Justice Walsh in the McGee case identified as being necessary in the exigencies of the common good. The Minister may feel it is necessary to get a referendum through. I am extremely anxious that this amendment is passed and that it will have the confidence of the people, but I am not convinced that it was necessary to load a third new concept in on the various cumulative tests which have to be satisfied. Of course at the stage when the failure of the marriage is being determined there are also other considerations such as the fact that there is no possibility of reconciliation, that provision is made for the dependent spouse and children and, if it remains the case and is not amended in this House, that the failure must have continued for a period or periods of five years. All that is cumulatively extremely strict but it does not get over the essential problem that there is a track record for what constitutes marriage breakdown. Courts know what is involved in that. There is no track record for what the Constitution will say, that the court must be satisfied that a marriage has failed. This could and will necessarily be a much more elaborate and intrusive examination than seems to make any kind of social sense. We must be concerned. We are trying to amend the Constitution, I hope primarily because of the men, women and, indeed, their children who are locked into a very painful and traumatic experience of having been involved in a marriage where the relationship has broken down, where the parties have taken their own courses as a result and who want out. I cannot see the rationale in the social justice or exigencies of the common good that require a new type of open ended green field examination that the marriage has failed at that stage. Although the Minister referred to guidelines he has not attempted to spell out any guidelines. I doubt if he can but perhaps if he could give us some indication of what the thinking behind it was it would be helpful.

I am moved to speak on the matter because Senator Robinson is overlooking an important point to which I would like to draw attention. She makes the point that the definition of the new constitutional legal concept of failure will require examination and definition by the court in due course and she is perfectly right in that regard. She then contrasts that with what she says is a well proven definition of what constitutes breakdown. She is wrong in that for a number of reasons. I do not think there is any such judicial definition in this country of what constitutes breakdown. I will give the Seanad the benefit of, for example, what the Government said in their statement of intent with regard to this matter which has been copiously referred to by Senators on all sides.

Paragraph 12 of that statement refers to changes in the law of judicial separation. It cites cruelty, adultery and unnatural practices which form the basis at present. It then goes on to propose a number of additional grounds. They are desertion, including constructive desertion, separation for three years or separation for one year with the consent of the respondent. That is a new category which the Government propose to introduce. Presumably that is what the Government mean by breakdown of the marriage but the committee on marriage breakdown went an additional step and meant something different by a breakdown of marriage because another very wide concept which is referred to in the next paragraph states:

The final, and more general, ground proposed by the Committee viz. that other facts and or reasons exist or existed which in all the circumstances made it reasonable for the applicant to live separate from...the other spouse...

I am not sure what side the Law Reform Commission came down on but the committee and the Government have two different definitions of what is meant by marriage breakdown. Therefore, the concept of what marriage breakdown is has not been defined by law. Let us go a step further and suppose that this amendment was accepted, that in due course the Government brought in their Bill and said that for the purposes of this Bill and all other purposes for which it may be used the term "marriage breakdown" shall mean cruelty, adultery, unnatural practices, etc. That, of course, would have no constitutional basis. Because judicial separation would then be capable of being adjudicated on on the basis of the statutory definition of marriage breakdown, that statutory definition would obviously be helpful but it certainly would not be decisive in deciding what is meant by a constitutional matrimonial breakdown which could be a far wider concept than the statutory concept. We eventually get to the stage that no matter what way we do it ultimately the Judiciary will have to define what is within the subsection. There is a possibility — but it is not in the amendment — that it could have been drafted like this, that instead of what is now proposed it could read "that there has been a breakdown (as defined by law) of the marriage". That would superimpose upon the constitutional position whatever current definition of a breakdown of marriage was the law of the land at the time. That is not what the amendment says. It says, "breakdown". I know that Senator Robinson, with her skill, if it is necessary to argue a point in court, will be the first one to say that the constitutional concept of the breakdown of marriage is not limited in any way by the amendment to the law relating to judicial separation. Unless we build into the Constitution a reference to something being defined by law, as long as we leave out that reference, what we put in is not limited by any judicial definition that might from time to time be operative.

While it is true to say, as Senator Robinson said, that the principle of the definition of marriage failure will have to be teased out by the court that is no different from the position that would obtain if this amendment is passed, where the concept of the breakdown of marriage would have to be defined. The Senator may say there would be some aid and assistance to the court in that matter but she will be aware that it is not in the simple straightforward cases that these problems lie. It is at the margins. It is because some case will arise which may fall within the judicial definition that the court will say: "It is within the judicial definition and, therefore, it is appropriate to grant a judicial separation". However, will it be within the definition of marriage breakdown within the Constitution which can be wider or narrower, depending on the judicial decision? As long as we do not restrict the definitions or refer those definitions back to a statutory interpretation we are invariably leaving the courts with discretion in the matter.

I am not going to attempt to define what failure of marriage is just as I would not attempt to define what breakdown of marriage is but irrespective of which approach is taken, there is room for a judicial decision. That judicial decision has a separate life from any statutory definition, from the definition of words of a similar type given in a particular statute. In other words, the constitutional definition of a word or a phrase is not limited to the way that word or phrase has been defined for the purpose of a particular statute.

I should like to respond to Senator O'Leary because he is focusing in on what is the core issue in this amendment. I am grateful for his contribution in that regard. I will take what he has said in stages. He accepts, and there is not any need for a dispute about it, that the concept of failure will need to be interpreted. We do not know precisely how it will be interpreted. He said that the concept of breakdown was not precisely legally defined. I accept that at the moment, but the approach of the Joint Committee on Marriage Breakdown was to ask for an amendment of the law in relation to judicial separation and divorce and have it on the basis of irretrievable breakdown of the marriage. The committee spelled out what they meant and set out the three existing matrimonial offences, periods of separation and the general ground. The Law Reform Commission were able to refer to breakdown and to give a very precise definition of what it meant. Other jurisdictions know exactly what they mean by breakdown of marriage because it is in the law.

I am of the view that the Government have committed themselves to defining in the context of judicial separation what is meant by breakdown of the marriage and, whether that precise word is used or not does not matter.

But for statutory purposes only.

That is the other point. We will have a clear definition for statutory purposes.

Senator O'Leary's next point was an important one. He said that was all very well but that was legislation and here we are talking about a constitutional concept. My response to that is: "Yes, although it is a constitutional concept, if a court is faced with an application for divorce and is clear on what has to be established, the reference to breakdown of the marriage will be very clearly a reference to what is considered to constitute breakdown of the marriage". In other words, it will refer to the legislation as it does for maintenance, separation and marriage. Marriage is as defined in the legislation. It is not defined in the Constitution. Breakdown will be as defined in the legislation. I meet Senator O'Leary to some degree in that if we had an attempt to define breakdown of the marriage by saying if they separated for a fortnight — let us be absurd — then you could challenge the constitutionality of that. You could have the legislation challenged as clearly not being of the standard required by the Constitution. The Constitution does import a standard but if there is legislation governing what constitutes marriage breakdown that will be applied by the Judiciary unless there is a good reason to have a doubt about the constitutionality of the legislation, its conformity to the constitutional standard.

I am anxious that the courts in identifying what constitutes a breakdown of the marriage will have clear guidance as to what constitutes breakdown of the marriage that we would be in known territory. I do not care whether it is the Law Reform Commission's identification of breakdown or that of the Committee on Marriage Breakdown or that of the Government. The Government are in between. In their statement published with the Tenth Amendment of the Constitution Bill they accepted a position in between the Joint Committee on Marriage Breakdown and the Law Reform Commission.

We know that is marriage breakdown and, if a couple have had a judicial separation on one of those grounds and lived separately for five years, they can go before the court on the basis that they can establish that the marriage has broken down, that they have lived separately, that there is no possibility of reconciliation and that proper provision has been made. Then they will be able to get their remedy. As a lawyer it will be difficult to advise somebody, as to whether and in what way they can adduce evidence or establish the new open-ended green field concept of failure in accordance with the Constitution. I do not see the social value of it. I do not see the reason for it. I only see it as being extraordinarily restrictive and intrusive. Politically it may have been felt necessary because it seems to be very final, but it is unwise and undesirable.

One of the problems is — I say this with the utmost respect — that Senator Robinson is starting off from a false premise. The Government have not said they are defining what constitutes marriage breakdown as a basis for separation. We have said nothing of the kind. We have said that what constitutes a basis for a judicial separation now is adultery, cruelty or unnatural practices. We have further said that we believe that the grounds for judicial separation should be widened to include desertion, including constructive desertion, separation for three years or separation for one year with the consent of the respondent. It is entirely a matter for Senator Robinson, or anybody else, whether she or they decide to interpret that as meaning a definition of breakdown. The Government have not said, nor will they say, nor should they say, that breakdown is a ground for judicial separation. We say that these things I have enumerated are are grounds for judicial separation. It is a matter for discussion, argument and judicial appreciation as to what extent any one of those grounds or a combination of them in a particular case constitute grounds for a judicial separation.

Normally, I would not venture into this area but since we are having this type of discussion I hope I will be allowed a little liberty and understanding from the law-years present. If a couple were to appear in court to seek a judicial separation on the basis of one incident of adultery it seems to me that the court would have to think quite carefully whether that was grounds for a judicial separation. If a couple were to appear in court and give as grounds in a request for judicial separation one incident of cruelty, equally the court would have to scratch its head and decide whether that constituted grounds. Therefore, even though those grounds are there in law as grounds of a judicial separation, it is not enough to show that there was an incident. The court has to make a deeper examination and come to a wider appreciation of what the problem is before it can make a decision on grounds that are provided for in law.

The false premise on which Senator Robinson is starting is that the Government have agreed that breakdown is a ground for judicial separation. It is not. Other people may choose to call the combination of things which are grounds, breakdown. That is not what the Government have in mind. To the extent that Senator Robinson's argument relies on the starting point of breakdown being accepted as grounds for judicial separation the argument does not stand up. I would go further and repeat what I said earlier. Senator Robinson asked how can considerations of social justice or of the exigencies of the common good require a new examination by the courts in a case where a couple are seeking a dissolution of their marriage. My answer to that, quite simply, is that a divorce is a much more final act. It is an irrevocable act whereas a judicial separation is not. Neither is the acceptance by the court of a voluntary agreement as a rule of court an irrevocable act. We are now talking about an irrevocable determination by the court, the granting of a dissolution.

This is perfectly proper given the importance we attach to the marriage bond. Given the importance we attach to marriage in our society and given the importance we attach to marriage as the foundation of the family which in turn is the basic unit in society, before we decide irrevocably to split the bond between marriage partners it is proper that we should have another look at the case. In saying that I am not at all ruling out, nor could I from the unplumbed depths of my ignorance of the law, the possibility, much more than the possibility — indeed the almost complete probability if one can translate a statistical term into legal jargon which is probably a very suspect operation — that the courts in deciding on how they appreciated the concept of failure would not attach great weight to the simple fact that a decision had been made and that the conditions existed to grant such judicial separation. They would have to. That would obviously be a part of the courts' appreciation of it.

Since the judicial separation or the agreement which was accepted as a rule of court is not in itself an irrevocable act the court would have to be further satisfied before it took an irrevocable step. That is why we are providing for this extra test. There is no legislation governing what we regard as marriage breakdown. If the courts know what they mean by it, that is the courts' business. It is not something they must conclude on the basis of legislation. The legislation sets out the grounds on which a judicial separation may be granted. It does not decide that the court must say these factors are equivalent to a breakdown and, therefore, there are grounds for separation.

For those reasons, the beginning of the argument is a false premise. I come back to the other point about the finality of the grant of dissolution. As I said earlier on the question of marital privacy I am not convinced by Senator Robinson's contention that we would necessarily become much more intrusive in applying the test the courts would feel obliged to apply in order to establish whether there was a failure. If we were to base divorce on separation only, the courts would have to inquire quite closely into the circumstances of separation. We could say that that would be the very easiest test. It is not the test we would wish to apply. The courts would have to examine with a great deal of care what the quality of the separation was. Was it a real separation or was it simply a series of circumstances cobbled together as a convenient justification for a divorce? If the courts go further, as they do at present in relation to applications for judicial separations, and inquire into marital offences the court has to enter into areas which all of us would regard as being very private. The court cannot satisfy itself that there has been a marital offence, one of the offences which is now the grounds for judicial separation, without inquiring into the circumstances of a marriage in a way which very definitely enters into areas we all regard as private.

If we look at the wider grounds, we are adding on to the marital offences, desertion or constructive desertion. Inquiring into desertion, the court necessarily has to go into much of the way people live. If one talks about constructive desertion, it is an even more intimate examination of how people relate to one and other. We are again going into areas which are very private. If we then proceed and look at the grounds for divorce and the conditions and provisions which have to be satisfied in accordance with the Schedule we will see the various financial and property provisions. I accept that we have not reached that point yet but since the question of privacy has been raised in connection with this amendment I may be allowed the liberty to touch briefly on that question.

The court is going to have to look in some detail at the condition of the ordinary day to day living of the family, to establish whether adequate and proper financial provision is being made. They are not areas which are private in the same way as the establishment of marital offences would be private but I think the House will agree that for a great many people in Ireland their financial affairs are just as much a matter of privacy, delicacy and intimacy as their sexual affairs.

I recall a friend of mine who recently moved to the country where he bought a farm. He asked his neighbour, a fairly large farmer, one evening during the course of a social drink how much land he had, and was amazed to find that there was a great cooling of the atmosphere at that gross intrusion into his privacy. He asked, "Why are you so worried about being asked how much land you have", and the neighbour said, "It is like asking me how much money I have in the bank".

There are a great many people who would be just as offended if asked how much money they had in the bank as they would be by even a hint of a question as to whether they were guilty of adultery or unnatural practices or cruelty. Whether we are talking about sexual conduct or financial affairs, all the tests we are talking about here enter into areas that are private. There is not any way in which legislation governing marriage or its dissolution can avoid going into very private areas. Finally, I do not think there is a way, if we take the view of divorce that we all seem to take on the basis of our Constitution, of avoiding applying a more strict test in the case of divorce than we do in cases of judicial separation. If the test is stricter, obviously it has to enter more deeply areas that are private. That is no more than a general principle or an expectation that would have to be developed by the courts, and they would build up their own jurisprudence about what would be required. Unless we accept that the grounds for judicial separation are in themselves adequate for divorce, we cannot avoid going into areas that are private. I do not think that the grounds for judicial separation should be adequate grounds for divorce on their own, and it is for that reason that the provision before us goes further than the test for judicial separation.

I will respond to a number of the points the Minister made, but I am increasingly puzzled and fascinated by the concern he is taking to assure the House that the Government, definitely and positively, do not intend to define marriage breakdown as a ground for judicial separation or to amend the law on judicial separation in order to include the ground of marriage breakdown.

I do not think we have to define the grounds. What the Senator calls it is her own business.

I am puzzled about why the Minister places so much emphasis on this. I made the point earlier that I do not mind what it is called; it is Tweedledee and Tweedledum language. But I should like to know whether there has been a Government decision on it and, if so, what the thinking behind it is. The Government decision would be at odds with that of the Committee on Marriage Breakdown and the Law Reform Commission. We assume that the report of the Law Reform Commission was substantially drafted by a certain Mr. William Binchy, so I can have common ground with a certain Mr. William Binchy — we both feel a necessity to clarify "marriage breakdown". In fairness to Mr. Binchy, he is not a member of the Law Reform Commission, and the commission may even have taken a different approach from his when they concluded, but they used the words quite expressly: "After much consideration, we have come to the conclusion that the better approach would be for the legislation to include breakdown of marriage as an extra ground for legal separation". So did the joint committee.

Have the Government thought about this and decided for some reason that they will not follow this advice? If so, the House would be interested to know why. Then I can answer some of the other points.

The Government have considered both reports and come to the conclusion, not specifically, that we should agree that breakdown is a basis for judicial separation; but that there are grounds for judicial separation not included in this legislation that should be included. They are: desertion, including constructive desertion, separation for three years, or for one year with the consent of the respondent. I am not particularly concerned to put a label on it. If the commission or the joint committee or Senator Robinson or anybody else wants to describe something as marriage breakdown, that does not bother me in the least. We have not and will not write into the legislation that it is marriage breakdown. We will define the grounds that will be taken into consideration.

I am grateful for that clarification. It appears that on that point at least we are agreed. I said considerably earlier that I am not at all concerned about how it is labelled. The point is that it should be clearly laid out. We do not have to encapsulate that it is set out in the term "marriage breakdown".

I take the Senator's point about the Tweedledee and Tweedledum aspect of this and I am glad that she has come round to my point of view. If the Senator agrees with me that it does not much matter what we call it, she must agree that at least there is some foundation for my view that it equally does not matter what we do not call it. The difficulty we have is that, even though Senator Robinson says she does not mind what we call it, she is using the term that what we call it is what is in her amendment to be put into the Constitution. I do not believe it is proper or adequate to put that label on it and therefore I do not agree it would be right to put that label as a shorthand into the Constitution.

That brings me to the heart of this matter and the very serious problem that is emerging. The Minister expressed the clear view that the grounds which the Government would be extending for granting a judicial separation are not the grounds on which a court would conclude that there should be a divorce — in other words, that the marriage had failed — that there would be somewhat different grounds, wider, deeper, different. That is what worries me. The Government decided that all the incidents in a marriage can be terminated by court order on the basis of the number of grounds set out. This, apparently, is not the basis for assessing the first provision in the Constitution, that the marriage has failed. That is to be evolved by the Judiciary when interpreting the Constitution.

I find it very worrying because I do not think it is an appropriate approach, or that it is warranted. The Minister said that divorce is more final because it is irrevocable. I accept that, and we are so regarding it. As a country we are doing a most unusual thing. We are having this as a two-stage process. Apart from the huge backlog of hard cases, people having been separated for 20 years, from now on when marriages break down it will be a two-stage process, the first stage being the order of juducial separation on grounds which may or may not be characterised as marriage breakdown.

The Minister has said that when it comes to the stage of considering the granting of the divorce decree there must be much more finality. I thoroughly agree, but we are building in that finality because the court must be satisfied that there is no possibility of reconciliation, that there is proper provision for the spouse and children, must be satisfied, according to the Government, that they have lived separately for five years. All of that is enormous finality; but what is being added by the first criterion is a whole new ball game of establishing failure when already it has been established, as set out by the Government, but not giving a right to remarry. A court would have ordered that the parties would live apart after an application for a judicial separation had been brought by one party. It may be that an application for judicial separation would be brought by one party and heavily opposed by the other party and the court will order that all the incidents in the marriage, cohabitation and all the provisions in relation to it would cease other than the right to remarry. The basis for doing that at the moment is the establishment of one of the matrimonial offences and the Minister has made it clear that it has been extended to include desertion, constructive desertion and periods of separation.

That establishes that the relationship has broken down. Of course we have to be concerned about finality, that there is no possibility of reconciliation, and that there is proper provision for spouse and dependants. Why do we have to establish a whole new ball game, as well as the fact that the marriage has broken down, that the marriage has failed, in accordance with the quite subjective analysis of the judges of what is meant by the word "failed" as introduced in this constitutional amendment?

I have sat here for some time somewhat in awe and it is not often that I am in awe of somebody's arguments. At one stage my reservations were calmed but now I very much share Senator Robinson's concern that there is a new dimension to the breakdown of marriage over and above the additional provisions that are about to be introduced, which would be grounds for judicial separation, that in order for a marriage to be dissolved the courts have also to be satisfied that a marriage has failed. I am intrigued as to where and in what circumstances the courts could rule that a marriage has not failed where the grounds for judicial separation have been met. What about the case of a couple who have been separated, where an order for a judicial separation has been agreed upon and yet who then discover that their marriage had not failed in the eyes of the court? What is the difference? What is the extra quality, extra dimension, extra degree of breakdown, needed to go beyond these grounds for judicial separation to demonstrate that a marriage has failed? Is it a question of relationship or of finances? What is the extra dimension which the Minister has emphasised is involved in giving grounds for dissolution which goes beyond what is going to be provided for in a judicial separation? I know there is an intent to make it more difficult, but if that is so what is the word that is being used to demonstrate what that intent is to mean?

Without prejudice, I do not accept that the question leads to the conclusion the Senator thinks it does. In what circumstances can we say that a marriage has not failed when the grounds for judicial separation have been met? Again, without prejudice, one test is the difference between ordering a separation on the grounds of a breakdown of the marriage on the one hand and on the other granting a dissolution of marriage on the grounds of irretrievable breakdown. Again making the point without prejudice, that is the difference between the two if one is taking that particular line.

The two strands of the argument that is going on are the following: I and the Government take the view that the failure of a marriage to be demonstrated requires something more than is required by even the expanded grounds for a judicial separation because of the greater finality in the term "failure". On the other hand — and this is the equal parallel and corresponding track — the dissolution of a marriage is a more final act than the granting of a judicial separation. Although it may be theoretical or hypothetical in almost all cases, an order for a judicial separation or the acceptance of an agreement as a rule of court does not, of itself, rule out the possibility that the relationship may be restored. The granting of a decree of dissolution of marriage formally recognises that the relationship will not be restored. If one looks at the experience in other legislations one finds bizarre incidents that would controvert what I say now, but in our understanding of it the granting of a dissolution of marriage means that all prospects of reuniting the parties have been completely, irrevocably and finally ruled out. That is not the case in relation to a judicial separation although, again, I would grant that in the vast majority of cases an agreement or a separation rules that out.

I make the point that there is a difference between the two procedures and there is certainly a difference in the way that we intend to deal with them as set out in the statement of intention. That is, we will provide, in addition to new grounds for judicial separations, that when the courts are considering an application for a separation if they feel it is the right thing to do they can adjourn the proceedings and suggest to the parties involved that they address themselves to one of the groups or organisations that try to help to bring about reconciliation. That shows very clearly that there is a very fundamental difference between the proceedings that lead to a judicial separation and the proceedings that lead to divorce. That is why we require that there must have been a judicial separation or an agreement made a rule of court before an application can be presented for a divorce. That is the difference in quality between the two. That difference in quality between the two is what, in my view, justifies a more rigorous test in the case of divorce than we have in the case of separation, and that is why I would argue that the test of failure, with all its connotations of finality, should be used instead of the test of breakdown with at least the possibility that seems to be envisaged by that, both in the concept and in the practice of a reuniting of the parties afterwards.

As Senator Robinson goes on it seems she sees the question that will be before the court as becoming more and more complex and the difficulty the judge will be in of arriving at a conclusion becoming more and more difficult. It almost seems to be assuming the complexity of splitting the atom. I do not think that it is going to be that difficult. I certainly think that it should be difficult and that it should not be something easily achieved but, on the other hand, what is the position if all the other conditions have been met, if there has been separation for five years and if one of the spouses at least say quite flatly that the marriage has failed?

One of the problems I see about this is that divorce would be capable of being achieved unilaterally. If one spouse tells the court after five years that the marriage has failed and that there is no possibility of reconciliation, I do not see what the court can do except grant a divorce. What further can it do? The assumption is that mediation and all attempts at reconciliation have been tried at the time of the separation agreement or separation litigation. If one party says quite bluntly: "This marriage has failed; I am not going back into it; there is no question of reconciliation". The judge may feel that this is unfortunate but what can he do except accept that the marriage has failed? He may be reluctant to do so but, if he refuses to grant a divorce in these circumstances, there would probably be an appeal against it. It would be a blunt statement on the part of one spouse and, after all, it does take two people to make a marriage. You cannot have a marriage unless there is clear consent on the part of both people concerned. If at this stage one of them says consent no longer exists, no matter how long the discussion may take in court, at the end of the day I find it difficult to see how any judge could refuse to grant a divorce. Senator Robinson is painting a complex picture.

Senator Ryan is demonstrating the complexity of what we are talking about. His approach is significantly different from the Minister's on this. The Minister in responding to Senator Brendan Ryan did not say precisely what was meant by the concept of failed or failure, but he said it certainly would require something more than the expanded grounds for judicial separation. Is that not right? So it requires something more than the expanded grounds for judicial separation. I do not know what more, but something more.

Senator Eoin Ryan, on the other hand, appears to take the view that I am making an unnecessary fuss about this and that judges will know that a marriage has failed. With respect to Senator Ryan, I do not think we can be content with that. A court will certainly not, as he knows, interpret the concept of a marriage having failed because the man or the woman in the court says it has failed. Saying it has failed does not necessarily mean that a court will conclude that it has satisfied the constitutional test that the marriage has failed.

We are introducing an entirely new and additional test. Quite clearly we do not know what it means. We know the grounds on which a person can get a judicial separation. The Minister has said, and I agree with him on this, that you must have a different kind of finality for divorce from what you have for judicial separation. I very much agree. I am not trying to score debating points here. He said it is the difference between breakdown and irretrievable breakdown. I very much agree that you need an irretrievable breakdown for the dissolution of marriage through divorce. In fact, the real test of that finality is the condition under paragraph iii in this Schedule: there is no reasonable possibility of reconciliation between the parties to the marriage.

The House can rest assured that we are ensuing all of the safeguards of the grounds for a judicial separation, including the expanded grounds: five years living separately; no possibility of reconciliation; provision for the spouse and children. What my amendment is proposing is that the court be required to conclude that there has been a breakdown of marriage because the grounds for that have already been adjudicated upon.

The Minister says that this first condition under paragraph (i) "where the marriage has failed" does mean something. It means that the court must be satisfied that something more exists than the expanded grounds on which the judicial separation was granted. What? That was Senator Brendan Ryan's question. It cannot be to do with reconciliation. That was dealt with under paragraph (iii). The court has to satisfy itself about that separately. It cannot be living separately. That is separate too. What is it? What is the additional thing that is part of this establishment of failure?

Would the wording "irreversible failure" not have a greater connotation of finality than the word "failure"? In view of the case the Minister has been making, would it not have been more appropriate to use that wording than the word "failure" on its own?

I do not think the word "irreversible" would add anything to the concept of failure particularly since, as Senator Robinson pointed out, condition (iii) deals with that question. The question basically is whether we accept the grounds of judicial separation and the conditions of irreconcilability as grounds for divorce. I do not think we do. Otherwise why should we have any procedure other than a judicial separation that could be converted into a divorce? Unless you apply a greater notion of finality than is included in the grounds for judicial separation, then the argument you must make inevitably is that once you grant a judicial separation you grant a divorce. That is not what we are setting out to do.

I do not think — although it may sound to Senator Robinson gratuitous of me to say it — that we should make a great meal out of the difficulty of understanding the word "failure". The courts would not have a great deal of difficulty in deciding on what failure was. I contend that they do not have a great deal of difficulty in assessing whether or not the grounds for judicial separation are there, nor do they have a great deal of difficulty in deciding whether the expanded grounds for judicial separation are met. That is not the same thing as asking them to decide whether or not there has been a failure.

I agree with the Minister. It is a mistake to suggest or to think that the Government or those who drafted this Bill intended some complicated meaning for the failure of a marriage, or that we must read in some devious kind of thing that a court would have to recognise has been achieved before they could say there was a failure. The court will not be looking behind what is here. The court will not be wondering what the Minister intended or the draftsman intended. The court will be merely looking at the words as they are here. If the court comes to the conclusion that the marriage has failed, it will say so.

If one party says quite bluntly: "This marriage has failed, I have no intention of ever living with the other spouse again, or having anything to do with the other spouse, there is no possibility of reconciliation". Then the court will have little option but to accept that the marriage has failed. I do not say that with any satisfaction. On the contrary, the problem about it is that it makes divorce too easy. If one person says with conviction that the marriage has failed and the court is satisfied that there is no doubt about that person's view, then the court will have no option but to say that the marriage has failed. There is nothing very complicated about it. There may be some cases in which it will be complicated because there may be a lack of conviction, or there may be other evidence to show that the person does not really mean that it is failed and so on. But, once a person is convinced and says convincingly that the marriage has failed and he or she has no intention of ever being reconciled or having anything further to do with the marriage, then the court has no option but to say that this marriage has failed and to grant a divorce. In certain circumstances it can be very simple from that point of view. That is one of the problems — all it requires is one person determined to break the marriage and he or she will succeed in doing so.

The fact that two eminent lawyers like Senator Eoin Ryan and Senator Mary Robinson can come to entirely different conclusions about the meaning of the word "failure" illustrates very well the problem associated with the word "failure".

Is there any word on which two people will ever agree as to an exact definition?

Knowing how reasonable Senator Eoin Ryan and Senator Mary Robinson are, I am sure there are many words on which they would agree.

Not if it was the subject of the kind of scrutiny which this word is being subjected to.

When Senator O'Leary has finished I will continue.

I am very sorry. I was doing it in a friendly and helpful spirit and being constructive.

I invite the Minister to give me even a hypothetical example of — I cannot think of any from past experience or history — where a couple could have been granted a judicial separation, could have met the other conditions and could still be in a position where their marriage would be adjudicated not to have failed. If the Minister insists that there is a distinction here that is anything more than a distinction in words to give the impression that we are doing something entirely the opposite to what we are doing, can the Minister give me an example of where it would be conceivable that a court could say: No, you have had your judicial separation, you have met all the other conditions — and I mean all four conditions and that proper provision has been made — but this court does not believe your marriage has failed. Could the Minister please tell me some sort of situation where he would envisage this happening? If there is not at least some situation that he can produce in front of me, I have to believe this is just a word that is put in there to make an impression about what we are trying to do which actually means very little, or alternatively it is a word which is wide open to all sorts of misinterpretations. It could make life difficult for many people. I cannot figure out at this stage what the difference is.

Further to what Senator Eoin Ryan said in relation to a spouse insisting that the marriage has failed, I have a further concern which I expressed on Second Stage, and that is that a feature of the divorce proposal before us is that a person could obtain a divorce by relying on his or her matrimonial misconduct. If one spouse wishes to get out of the marriage and deserts the other spouse, then he or she could, under the Government's statement of intention, secure a judicial separation after a period of three years and be entitled to a divorce after a further two years, thus causing obvious hardship to the other partner. I speak as a non-lawyer, but it seems to me that this would introduce a new concept whereby a person would be entitled to a legal remedy by virtue of being in breach of the terms of the contract of marriage. A fulfilment in relation to the marriage contract is that both partners should live together. If one has a separation one could, through that type of conscious misconduct, be in actual breach of the marriage contract.

It would be very instructive to the Seanad, given the hypothesis that Senator Hillery has suggested, if he would tell the House the position of that couple under the existing family law arrangements in Ireland and the distinction between those arrangements and the arrangements that would be created after the passing of the referendum. He should specify exactly what is the position in the existing family law of the couple he describes, because we would find it very helpful in arriving at a decision.

Why does the Senator not tell us?

I will, but I wanted to give Senator Hillery the opportunity. The scenario which Senator Hillery described tells of an individual who goes away, deserts and, on the basis of his or her own activities, provides grounds and then goes on and tries for a divorce. With respect, where I think Senator Hillery is misleading the Seanad is in relation to the position of the family court and the kind of proceedings that would take place therein; the security of having a court agreement, which the person would have in the event of the amendment being carried and ensuing legislation taking place, and the total lack of protection that the dependants and the deserted spouse of the person he describes have at present under existing family arrangements. If you are going to create bizarre examples in the future, you really need to take account of the bizarre and unfortunate situation in which people are at the present time, given the defective provision in family law. You must compare the existing provisions with the potential provisions in the case of the amendment being carried.

Being a person not having had the good fortunate to be born and raised in the particular surroundings of Senator M. Higgins, I tend sometimes to be blunter than he is. As far as Senator Hillery's question has any point, I would have to observe that precisely what he fears happens now. I would have to add to that that the Oireachtas Joint Committee on Marriage Breakdown, in the full knowledge of the fact that those things happen now, recommended — and I do not think there was a big division in the committee on this, although I am subject to correction — that we extend the grounds for judicial separation to include desertion, constructive desertion, separation for three years, and separation for one year with the consent of the respondent. If anybody in this House or the other House, or outside the Houses of the Oireachtas, criticises this proposal on the kind of basis that Senator Hillery has indicated, it means either that that person has not the slightest clue of what is going on now, or that that he or she is opposing this proposal for no good reason other than that they do not like the look of what we are doing, they do not understand it and they do not want it.

It is a good way of whipping up public opinion about something that, unfortunately, a large proportion of the public do not understand. If you walked out into Kildare Street tomorrow, or even this afternoon, and described the kind of conduct that Senator Hillery has described, people would say that fellow should not be allowed to get away with it. If you told 90 per cent of the people out there that that person can get a separation agreement now as a result of behaving like that and, in the imperfect state of the world, get away with it, people would be appalled to know that that is what the situation is. If you pursued the matter a little bit further and said that by passing this measure the people of this country, for the first time, are going to give some constitutional protection to the spouse and the children of that marriage, they would rejoice, as I hope they will be able to do after 26 June.

I hoped that the Minister would respond to Senator Eoin Ryan's question but maybe I can put in a little supplementary that he can answer at the same time. It arises from Senator Ryan's further intervention in which he repeated that the courts will simply take the concept of failure from one spouse saying that the marriage has failed and that party is not going to live with the other party. I respectfully suggest to Senator Ryan that that expression by one of the parties that the marriage has failed and that that party is not going to live with the other party has much more to do with the condition in paragraph (iii), that there is no reasonable possibility of reconciliation. It is on that that the court will form the view that there is no reconciliation, and that the finality which the Minister desires at the stage of a divorce. I agree with him that the court should be satisfied that there is that finality with no possibility of reconciliation, that the parties are saying that their marriage has failed, they are not going to continue in it, in no way will they be brought back together, it is over, it is done, it is out.

Senator Brendan Ryan asked what I asked in my own way earlier, if a couple got a judicial separation on one of the grounds, including the expanded grounds which the Government will be bringing in, if there has been five years' separation, if there is no reasonable possibility of a reconciliation, if any other condition has been satisfied and proper provision has been made for the spouse and dependants, what are the circumstances in which a court could still conclude that the marriage has not failed? If the Minister is right, there must be circumstances that different criteria are operating. That is why it is there.

I have said that there is a greater finality about the conclusion that something has failed. At the very minimum, if there is no difference between the two, then Senator Brendan Ryan and I have just spent a very intellectually stimulating hour arguing about it. If, as I contend, there is a difference between the two, that the court has to be more finally satisfied that there is a failure, then since I believe that we should apply a stricter test to the dissolution of a bond rather than its setting aside without a final dissolution, I would argue in favour of the failure. I will not enter into the ground of illustrating hypothetical cases where the courts might make that decision because that is a matter for the courts. We will give them an indication in the way that this measure is drafted and in the words that we will use that we want to convey the notion that we want that finality that is associated with failure more than it is associated with breakdown, to condition the court's mind when it gives a decision to grant a dissolution of a marriage. We could spend the next week talking about the hypothetical cases and no one of them would necessarily arise. It would be for the courts to develop their own practice and their own approach to that.

Further to Senator Eoin Ryan's last question, the Minister has not yet fully responded. What would happen if one spouse requested unilaterally a divorce on the grounds that he or she would not go back into that marriage and that in his or her opinion there is no possibility that that marriage being reconciled?

That is another question that allows us to have a look at what now happens in practice. Let us take it from the simplest to the most difficult cases. We had some discussion in the other House — I know they are not proper subjects for discussion here — about unilateral divorce. It was raised there on the following basis. If it were possible for people to get unilateral divorces under these measures, then there was obviously something wrong with this measure because people do not like the idea of the unilateral decision of one party to a marriage. What happens? Take the all too common case of a wife who is subjected to cruelty by her husband, who is being beaten by her husband. She decides after a certain point that she has had enough of this, she cannot put up with it any more. She asks for a barring order. Does anybody seriously think that she waits until the husband comes home one evening and before he starts beating her up they have a discussion to decide whether they should agree that she should look for a barring order? No, she decides unilaterally that the situation of her marriage is such that she wants to look for a barring order.

Take the case of separations. I do not practice in the courts. I meet ordinary people in non-legal situations and they tell me about their problems, but I do not know in what proportion of cases where people draw up a separation agreement between them the process starts with the two spouses sitting down and deciding that maybe they should start thinking about a separation. I suspect — I think other people would bear me out in this — that in most of those cases one spouse begins to feel that really this thing is not working out the way they expected. Since most people in this country try to make their marriages work, that spouse makes allowances for the other and finds ways of dropping hints, either subtle or less subtle, to the other that something is going wrong and it does not work out because the other is either too dense or too wrapped up in something else to get the hint. Finally one spouse says to the other, "Well now, I think we really should talk about how we are going to work this out" and there is not an adequate response. Perhaps when it reaches that point they can agree between themselves that they should separate and they go and draw up a separation agreement and they submit it to the court if they have a mind to do so and get it made a rule of court.

Where there is an application for a judicial separation the typical case is that one spouse unilaterally, as a result of the situation in the marriage, decides to seek an arrangement of this kind, and even the grounds on which that is allowed now must obviously be to any observer grounds that will give rise to that kind of action. Take adultery, for example. Is the adulterous spouse going to go off and decide in a typical case to look for a separation agreement? Is the one who is exercising cruelty going to be the one who goes off and agrees that they look for a judicial separation? In the majority of cases where marriages break up or where problems arise in a marriage that lead either to a barring order or a separation, one of the spouses has decided that he or she cannot put up with the situation any more and decides to act. There is nothing hugely innovatory or scandalous about the notion that there is a unilateral action that would lead to a divorce. It is the nature of a relationship between two people that if it breaks down one of them is going to have to make a move. It is in the nature of a relationship between two beings or entities of any kind that if there is to be a breakdown one of them decides to move before the other. Countries do not sit down and have a conference to decide whether they are going to declare war on one another.

There is an obvious inevitable element of unilaterality in any action or sequence of events that leads to a separation. Therefore, to raise the question "could people get a unilateral divorce under these provisions" is totally pointless. If you do not have unilaterality you will not have any of these separations. Obviously I would like the House to agree with me, but I would like the House to recognise that the term "unilateral divorce" cannot be used logically or to criticise any provision that is here. It is very clear that in a relationship involving two people if one of them decides that the relationship should end or is not satisfactory, then ideally they should discuss it and try to work out an agreement. If one of them, after discussion, still remains of the view that the relationship is not one that is giving him or her what he or she wants out of it, we will have unilateral action that will lead to a break up of the relationship.

The Minister has overlooked one very clear distinction between the position at present and what it proposed in this legislation because up to now one could have unilateral action. A person could get a separation because of adultery, cruelty or unnatural practices on the part of the other party. That was a situation where there was fault; something was being done by the other spouse which certainly justified the innocent party looking for a separation. Two new grounds for separation are being introduced here, one of them merely being separation. A person can now separate from the other party, can get a separation and ultimately a divorce where there is no fault whatsoever on the part of the other spouse. That is a very clear distinction between the situation at present and what will exist in the future, first, being able to get separation and, secondly, to go on to get a divorce where there is no fault whatsoever on the part of the other spouse. That is unilateral if you like, but it is unilateral where there is no cause.

I understand this is a debate between lawyers but I am puzzled because it is quite obvious when a marriage breaks down that one or other partner will take an initiative. If they had shared wisdom it is unlikely that there would have been a breakdown in many cases. The Catholic Church in their nullity process do not have a problem with this. I had the misfortune to be involved in such a process as a witness where the other side did not respond, co-operate or even appear and the relatives would not co-operate. The Church found no difficulty in arriving at a decision to nullify that marriage. Opposition Members have argued both in this House and in the press that the nullity process should be extended rather than bring in divorce. But if they want to follow the example of the Church they are creating many problems for themselves in this House.

With regard to what Senator Eoin Ryan said, this is an idealistic situation which bears very little relationship to what happens in marriage breakdown. This idea that you have one absolutely white, innocent party and one absolutely black, guilty party bears so little relationship to what happens in marriage breakdown that I find it difficult to understand when people talk like this.

It was very significant that all the groups who came to give evidence to the Joint Committee on Marriage Breakdown, every single one of the groups who dealt with marriage breakdown, marriage counsellors, social workers, the Churches and so on, felt that irretrievable breakdown was a better ground for separation or for divorce if we were going to have divorce than this kind of false matrimonial idea that Senator Eoin Ryan was talking about. Therefore, the number of cases where this sort of thing arises is very small.

Supposing we take the extreme case to which he referred, what happens now? Perhaps a husband decides he would rather have a little dolly bird instead of his wife and takes off with her to England and establishes domicile there, in which case he can get an English divorce which will be recognised by the Irish courts. Supposing he stays there and just deserts her, what use is that marriage to her? It is all very well saying that she should not be divorced without her consent. Let us look at it from a practical point of view. She will not get anything out of the husband by way of money or anything else that she will not get under the proposed legislation. In fact she may very well get less.

Who are we to judge who is innocent and who is guilty? It is very hard in relation to a married couple to say that one person is utterly without fault. Are we saying that the innocent party will be allowed to maintain that marriage simply out of spite? "I will not let him go because he is with somebody else" or "I will not let her go because she is with somebody else". I do not think that sort of sexual jealousy is a good or socially viable reason for maintaining a marriage and for refusing any legitimacy to children who may have arisen out of the second relationship. If that is what people are offering as a splendid reason for not having divorce, I do not agree with them. Also, that situation arises in so few cases that I can scarcely remember one with which I was associated where there was absolutely no fault on one side.

With regard to the person who does not want the marriage to break up, this is covered very well by Part II 2º (iii) — there is no reasonable possibility of reconciliation. This also parallels what happens at the moment. One can often get a case where a wife — it is nearly always the wife — comes into court seeking a divorce a mensa et thoro, or a barring order, and the husband says to his solicitor that he does not want the marriage to break down, that he would like to effect a reconciliation. At present if a judge is told that one of the parties feels there should be attempts at reconciliation and does not want the marriage to break up, the judge will virtually always make an order adjourning the application and recommending marriage counselling or advice of that kind. It is only when that has taken place and after they have come back to court again to show it has not worked and perhaps bringing evidence of a psychiatrist or psychologist to show that it has not worked, that the order sought will be given and the court will accept that the marriage has broken down. In practice, in virtually every grounding affidavit for setting down a case where someone is looking for a barring order or looking for divorce a mensa et thoro, one of the first things one says in that affidavit is: “The marriage between myself and the defendant has irretrievably broken down”. It is accepted already as a ground for separation. To say that by bringing in legislation for divorce there will suddenly be a whole lot of guilty parties applying for orders on their behalf against totally innocent wives bears so little relationship to reality that I fear it is just a debating point.

The House had a very full opportunity to examine and consider this amendment and I am not anxious to delay the House this Saturday afternoon, but I will obviously respond further if Senators want to raise any other issues.

Having listened carefully to the debate I am, if anything, more worried about the inclusion of this concept that the marriage has failed than I was when I first read the text and when I decided to table the amendment. It is clear from the debate and the Minister's contribution that it is intended to add something but it is not clear what it is intended to add. It is intended to add something in that the Minister has stated, and repeated, that even if there are the grounds on which a judicial separation was granted, even if there has been five years separation, even if the court is satisfied that there is no possibility of reconciliation and is satisfied that provision is made for dependent spouse and children there is something else. Senator Ryan asked, and I ask, what it is, but the Minister cannot or will not give us an example of what it is. What is that something else? It is incredibly unsatisfactory that we would load a situation with some sort of general provision which can be very subjective. Judges are only human. If a judge notes that all those things exist and says he has to be satisfied about something else, that could mean that a judge would say, "notwithstanding a judicial separation five years ago, five years living apart, both parties before telling me that there is no possibility of reconciliation, the marriage has totally failed and adequate provision has been made for the spouse and children, I am not satisfied the marriage has failed". First, why should a party be at risk of that and, second, how does one appeal to a higher court, how does one know what the Supreme Court would do, or the High Court on appeal from the Circuit Court which would be dealing with this matter as the family court would do?

Senator Eoin Ryan, in his interventions in the debate, said that this was not worrying him because it will be clear to a court if a party comes before the court and says the marriage has failed and that he or she is unwilling in any way to continue to be involved in or resume a marriage relationship. As I have said, and I repeat, that is the satisfaction of the criteria under subparagraph (iii), that there is no possibility of reconciliation between the parties to the marriage. The Minister has said he wants finality and that this word was chosen to give finality. I support him in wanting finality when a decree of divorce is being given or handed down, but that finality comes from a judicial separation, five years living apart, no possibility of reconciliation and proper provision being made for any dependent spouse and children. That is finality, all the finality we could look for. What we then get into is in the realm of worrying judicial further investigations and subjective assessment of what the judge may think is marriage failure. I am trying to see my own way into this hypothetical case that the Minister has not been able to put forward. Is it the case that a judge, faced with a decree for divorce would be furnished with the papers of the judicial separation which was awarded three or four years earlier on one of the grounds, say, adultery, may look at it and say, "I do not think that is enough"? Are we in that sort of arena, that although there was adultery, a judicial separation and five years separation and so on, at this stage of the marriage the court would reopen that and say, "no I do not think so; although that might have been enough for a judicial separation, it is not enough for a divorce"? We do need to know this. Some of us may have to advise people in relation to what are the grounds they will need to establish.

It is very difficult for me — I think I have common ground here with Senator Eoin Ryan — to see how it is not proper for a court to issue a decree in circumstances where there has been a court proceeding on the grounds we have been talking about, which I encapsulate as being marriage breakdown as did the Joint Committee on Marriage Breakdown and the Law Reform Commission. The Minister does not like the word, it is obviously a buzz word that he is nervous about or the Government are wary of. If there is a court order of a judicial separation, if there is five years separation, if the parties have convinced the court which is hearing the application for a divorce that there is no possibility of a reconciliation, and if the court is satisfied that proper provision is made, if that is not cumulatively a proper basis on which to issue a divorce decree I am puzzled. Why do we have this additional open-ended, undefined, and apparently undefinable concept, left to the subjective ruminations and perceptions of the judiciary? The Minister has not made the case for it, except to use the word "finality". The finality, in fact, comes from no possibility of reconciliation. We are talking about a couple who have lived apart for five years, minimum. We are talking about a couple who have already got a decree of a court or else have had a separation made an order of court and who convinced the court that there is no possibility of reconciliation. Is that not finality? I find it very difficult to understand this.

I feel the need to press this amendment in the sense that I am convinced that the case for this new first condition has not been established and that it can be improved and made much more acceptable by the substitution of the wording of the amendment, that there has been a breakdown of the marriage. That would bring the court within the realm of the grounds which at any point in time were established for a judicial separation and would then, nonetheless, require the kind of finality of establishing that there was no possibility of reconciliation and so on. That is the proper approach and one I recommend to the House.

I should like to ask Senator Robinson to bear in mind the following. It is a situation that she, and Senator McGuinness have described. We are operating in a system which provides for judicial separations, on grounds that are set out in legislation, on applications that use the term broken down or breakdown for which there is no definition. I am not aware, nor has anybody said anything to this effect today, that there is a great requirement for judicial rumination — to use Senator Robinson's term — to decide what that means in practice. I make that point as an observation. I do not want to reopen the argument.

Senator Eoin Ryan's objection it seems to me is not, in the first instance, to the provision for divorce itself. His objections seem to be to the expanded grounds on which a judicial separation could be given. I suggest, with respect, and not meaning to be contentious, that it is a little late in the discussion to be putting that point now when the Oireachtas Joint Committee on Marriage Breakdown, after a great deal of discussion, produced a report which recommended that there should be an expansion of the grounds on which judicial separation should be granted without, as far as I know, that recommendation having been the subject of any great contention during the course of the committee's existence.

I only made the point in response to the Minister's dissertation on unilateralism.

The point I am making is that we already have unilaterality by definition in the approach to the present grounds. That is not an objection of substance, that is what happens in human conduct.

There must be a good reason on the present grounds.

There is an element of unilaterality in the expanded grounds and simply because the grounds are expanded we should not argue that there is a new element of the unilateral coming into it nor, indeed, can one contend that in relation to the new grounds there is necessarily — as Senator McGuinness has pointed out — a situation where there is one innocent and one guilty. That is not the way life happens and that is not the way relationships work out. To the extent that there is a real objection in what Senator Eoin Ryan has said it is not an objection to the provision of divorce but an objection to the extension of the grounds for a judicial separation.

That was my point as well.

It is rather late in the day to be making that argument. It has not been made on Second Stage here, it was not made during the debate in the Dáil and it did not become a point of major contention in the discussions of the Oireachtas Joint Committee on Marriage Breakdown on which, I think I am right in saying, all of the parties in the Oireachtas were represented.

The essence of my point was the additional or expanded grounds for a judicial separation and I readily admit that I am not speaking as a lawyer. The point I made in good faith is precisely the point the Minister has elaborated on. The Minister's interpretation of what I said is entirely unmerited. I made the point in good faith about expanding judicial separation.

Cuireadh an cheist: "Go bhfanfaidh na focail a tairgeadh a scriosadh", agus faisnéiseadh go rabhthas tar éis glacadh leí.

Question: "That the words proposed to be deleted stand", put and declared carried.
Fáisnéiseadh go rabhthas tar éis diúltú don leású.
Amendment declared lost.
Níor tairgeadh leasú Uimh. 3.
Amendment No. 3 not moved.

Amendments Nos. 4 and 5 are alternatives and may be discussed together.

Tairgim leasú Uimh. 4:

I gCuid I, leathanach 7, línte 1 agus 2, mír ii a scriosadh agus mír nua mar a leanas a chur ina hionad:—

"ii. gur tháinig mar gheall ar an gcliseadh go bhfuil na páirtithe ann ina gcomhnaidhe ar leithligh ar feadh tréimhse dhá bhliain ar a laghad nó tréimhsí dhá bhliain ar a laghad san iomlán," agus

I gCuid II, leathanach 7, línte 16 agus 17, mír ii a scriosadh agus mír nua mar a leanas a chur ina hionad:—

"ii. the breakdown has resulted in the parties thereto living apart for a period of, or periods amounting to, at least two years,"

I move amendment No. 4:

In Part I, page 6, lines 1 and 2, to delete paragraph ii and substitute a new paragraph as follows:—

"ii. gur tháinig mar gheall ar an gcliseadh go bhfuil na páirtithe ann ina gcomhnaidhe ar leithligh ar feadh tréimhse dhá bhliain, ar a laghad nó tréimhsí dhá bhliain ar a laghad san iomlán." and

In part II, page 6, lines 17 and 18, to delete paragraph ii and substitute a new paragraph as follows:—

"ii. the breakdown has resulted in the parties thereto living apart for a period of, or periods amounting to, at least two years."

This amendment seeks to substitute a new second condition for the existing condition which as the House will see is that the failure has continued for a period of or periods amounting to at least five years. The amendment would substitute for that that the breakdown has resulted in the parties thereto living apart for period of or periods amounting to at least two years. Clearly, this amendment was tabled in the optimistic assumption that the other amendment would be carried and that the word "breakdown" would flow from the amendment we had already made. I am quite prepared to amend it on Report Stage if the amendment gains the support of the House.

Let me first deal with the Government condition which will help to explain why I have proposed an alternative and quite restrictive condition which would be preferable if we were, as we are, inserting a number of restrictions explicitly into the Constitution. I am unhappy about the wording of subsection (2) for a number of reasons. The first is that it carries over the concept of failure which we have totally failed to clarify, identify or put shape into in the last amendment.

If we cannot define "failure", it should not worry the Senator too much that she has failed to clarify it.

That the Minister might well say, but I do not like putting things into the Constitution which I can neither understand nor get hold of. I do not mind taking things out but I do not like putting things in. If we are honest, we have not been able to identify what precisely is added and introduced by the first condition, that the marriage has failed. We have not been able to say in what way that is different from the basis on which a judicial separation was awarded — a five year separation, the fact that it would be established that there is no possibility of reconciliation and that provision has been made for the dependent spouse and any children. We do not know what else is being added by saying that the marriage has failed. We now have a very curious provision because it says the failure has continued for a period of or periods amounting to at least five years. Whatever this failure is which we have not been able to get hold of it need not be continuous.

It is not final.

That makes me even more concerned as to how to get hold of it. If it is not continuous, then it is something which can have failed for two years, then unfail — there could be a period of unfailure of one year — and fail again for another three years. Therefore, we have periods which ultimately amount to five years.

The mind boggles as to what this is and as to how a court will approach it. If the word is to have that clear element of finality which the Minister was talking about it should not be possible that it would unfail for a while. The two are not easily married or reconciled. As I emphasised a number of times, the real and additional element of finality which the court dealing with the divorce application should be satisfied about is that there is no possibility of reconciliation. That is the real element of finality. That is what it is about. Also proper provision should have been made for any dependent spouse and children. What other aspect of failure has to be established worries me because it is so nebulous, subjective and hard to understand that it can only open up the potential of being the subject of very different approaches by different judges and be an additional pressure and tension for the couple who are applying for a divorce at the end of this long road.

In seeking to formulate an alternative I accepted another concern which is very widely expressed, that there is nothing in the constitutional amendment which the Government are putting forward about requiring a period of living apart. That is to be required in the conditions which the Government have said they will prescribe. It is clear from the Government's statement that they intend to prescribe a period of at least five years separation before an application can be made for a divorce. That is a very strict period. It is also fair to say and it has been said very vocally by those who are opposed to this amendment that it is a condition in legislation and therefore can be changed. Five years in 1986 could go down to three years, two years, six months and down to a week. If one wants to, one could see a whole progression. On the face of it, it is a valid argument to make, that the finality is in the fact that there is no possibility of reconciliation. It would be helpful to realise that people do have concern that it be established that the breakdown of the marriage relationship has resulted in the parties being required to have taken the course of living apart for a period. I have proposed in this amendment that they should live apart for a period of or periods amounting to at least two years.

The concept of living apart has itself been the subject of judicial interpretation. It does not necessarily mean living in two separate households. It does not mean that some one who cannot afford to live under an entirely separate establishment would be prevented. Living apart is living separately even if in certain circumstances, for economic reasons particularly, the parties may still be living under the same roof, but it would introduce this condition for what I think is a reasonable period of two years.

I framed the amendment in this way because what I am proposing and suggesting is preferable to the provision in the Government's Bill where there is a very difficult concept of failure that may not be continuous and must nonetheless have continued for a period of or periods amounting to at least five years. Since it is very hard to estimate how a court will approach that concept of failure, I find it difficult to know whether this is an extremely restrictive provision or potentially not a very meaningful one. For example, if a judge was prepared to conclude that when there had been serious problems in the marriage relationship that that constituted failure as far as he was concerned, then there could be a substantial period of failure without the parties living apart in the legal sense either in separate dwellings or in the judicially recognised concept of living apart. That could still amount to failure if the judge was of the view that the marriage relationship had failed, if the parties were not communicating as husband as wife — were not sticking to each other and were ceasing to cohabit.

The second condition is unsatisfactory from a number of points of view, unclear, and provides a whole new test in the period of five years which is different from and may not coincide with what the Government propose to prescribe, which is, living separately for a period of five years. It would be helpful if the Minister would clarify the Government's intention in relation to "living separately" for the purpose of satisfying that condition in the legislation. Undoubtedly they are different concepts and may be viewed quite differently by the Judiciary, so "failure" may not coincide with "living separately".

For example, a couple might decide to enter into a trial separation for a year. That is not uncommon if the couple are trying to make their marriage work — it is one way of seeing if things can be sorted out. That might well be computed as part of the separation if, the efforts having failed, and after a brief coming together, the parties separated for a further four years. It is difficult to envisage that a judge, who had before him evidence of a trial separation of a year, would conclude there had been a failure of the marriage. The judge might well say there had not been failure for five years even though it appeared the parties had been living separately for five years or more.

From both perspectives it is nebulous from the point of view of how the five years are to be calculated. I submit this is not a satisfactory condition, that it would be preferable to be clear and explicit if we want to insert a condition in addition to establishing that the marriage has failed and that the failure had resulted in the parties living apart for a period of or periods amounting to at least two years. If you combine that with no possibility of reconciliation, and proper provision having to be made, that would seem to me to be a reasonable provision for the dissolution of the marriage and a decree of divorce.

Níor ghlac mé páirt sa díospóireacht go dtí seo mar bhí an lá ar fad, beagnach, ag na dlíodóirí. On this amendment I can claim to be on equal ground with all the senior counsel here. The one thing that impressed me about the legislation when it was brought in was that five years were written in. The greatest fear most people had was that they could foresee divorce in Ireland at the same level as in other countries where it is available at the drop of a hat. The five-year condition convinced people who stood back from this that a marriage that is apart for five years is broken down or failed. If the period is reduced to two years we will automatically lose the trust people have in this legislation, that it is sincerely dealing with marriages that are beyond redemption. I hope judges will not use time spent on efforts at reconciliation as time that would not be counted, because that would be disastrous: if couples make an attempt to come together this should not be used afterwards to their disadvantage if such efforts fail. That would defeat the whole purpose of attempts at reconciliation.

Surely the implication in paragraph ii is that the word "failure" could apply to a state which is reversible. It can be construed from the wording of this paragraph that a marriage would have failed for a period, that the failure would have been reversed for a time and then perhaps recur.

The purpose of amendment No. 5 is to amend paragraph ii so that it would read that a marriage has failed and that there is no possibility of reconciliation. It leaves out completely the words that the failure had continued for a certain period amounting to five years. I do not think you can quantify the number of years necessary to define whether a marriage or not has failed. It does not help to specify one year, two years, four years or five years. We have to leave it to the judgment of the courts whether a marriage has failed and to lay down criteria which they can use. A marriage can have failed during five years of separation, or it can have failed for a number of reasons.

We have been told that the Government are to introduce legislation to provide that separation will be compulsory for five years. That is wrong and difficult to accept because I am not sure that "separation", unless the Minister defines it very correctly, should be a criterion for marriage dissolution. There will be many cases of people who have lived together for many years in marriages which judges would say have actually broken down. One hears of cases continuously in which people have lived together and have not spoken to each other for years and have lived separate lives. I do not think you can say that, if people live apart for a period of five years, they are eligible for a dissolution of marriage. The criteria must be different from just a time limit. This time limit, in my view, is a sort of punishment being imposed on people whose marriages have broken down. If you leave it at five years you are saying you have got to prove a marriage has broken down for five years. The parties have to be separated for five years longer as a result.

One can think of many cases in which this will make life harder for those whose marriages have broken down and who are entering into second relationships. The introduction of the time element is wrong because this can vary so enormously. All this paragraph does is penalise those whose marriages have broken down. It prevents them having the right to remarry for five years. Perhaps in some cases it should be longer and in others shorter, but it is a pity it is being expressed in terms of time. The reason this is being done is to give it a better chance of succeeding in the referendum, but the result will be that we will have a very restrictive form of divorce and I regret the inclusion of this paragraph.

I should begin by saying to Senator Ross that this is not the provision that requires people to separate for five years. What it requires is that the failure of the marriage shall have continued for a period of or periods amounting to at least five years. As has been pointed out, one can conceive of situations in which a marriage would have failed without the partners separating and Senator Ross indicated one such possibility. The constitutional requirement proposed is that there be a failure and for that failure to exist for a period or periods amounting to five years. The five year separation requirement is an indication we have given as to what will be in legislation provided for in paragraph iv in the Schedule, that is, any other condition prescribed by law has been complied with. They are two separate things. It would not necessarily be the case that the period of failure and the period of separation would be coterminous. I would imagine that in a typical case the failure would have been determined at a particular time and separation would follow some time later.

I know the argument Senator Ross wants to make and I respect it although I do not agree with it but it is not accurate to characterise the legal requirement for five years separation as a punishment. It is not a punishment. It is a necessary part of the restriction we want to impose on the conditions under which divorce will be granted. Senator Ross takes the view that the divorce regime provided for is too restrictive. He and I will have to agree to differ on that. I know he wants a much less restricted provision than we have proposed here. I could argue that Senator Ross' position is one he has taken up because it will please a particular interest group. He argues that I am taking up a position because that pleases particular interest groups. Neither he nor I would be right in doing that. I gave the House my sentiments on that on the first amendment this morning. It is not accurate to characterise the five year separation requirement as punishment.

Senator Robinson, apart from failing to understand the meaning of failure, has a difficulty with the period of or periods amounting to at least five years. She asks if this means that a period of failure would be followed by a period of success, followed by another period of failure. That is not what we have in mind. We have a different approach to it. We do not want to include unnecessarily in the provision for divorce any measure or any condition that could, in itself, constitute an obstacle to people who felt they wanted to explore the possibility of a reconciliation. If we were to include a single period of failure of five years, people who decided at a given moment that their marriage had been a failure would begin counting from that moment if they were thinking in terms of divorce.

If they came to the view, as they might after a period of failure and/or separation, that they were wrong, that this separateness was not giving them what they thought they might get out of it and that it would be better to examine the possibility or whether or not the marriage would work, they would have to weigh up their prospects of failing at a reconciliation and the prospect of going back to square one as far as the definition of the period was concerned against the chance that a reconciliation might be effected. That is why we have put in a period of or periods amounting to at least five years so that in the formulation of the measure we do not create an unnecessary and artificial obstacle to people who believe they should try again for a reconciliation.

It does not take a great stretch of the imagination to conceive of situations where people might conclude that their marriage had failed and separate — I am not talking about the legal requirement of separation — and conclude again after a period that separation was not all it was cracked up to be and they should examine the possibility of a reconciliation, live together again for a period and still find that things had not changed, that the marriage was still a failure. I would not envisage the sequence of failure or success as being the only possible sequence. You could imagine the sequence of people who established that there was a failure, who live apart, decide to try a reconciliation, get together again and reconfirm that there is a failure. That is the situation we had in mind when we made this provision for the possibility of periods amounting to five years.

The five year separation period is in the legislation and not in the Constitution. The five year separation period in legislation is one of the extra conditions that is envisaged, or for which the way is left open in paragraph iv. We did not want to put the specific requirement for separation into the Constitution, because we felt the concept of failure, and failure having lasted over a period, was really the test. Separation in itself would not necessarily be the test that would allow one to draw the same confident conclusion as would simple separation. That is why it is cast in this way.

The period of five years was one over which we had some argument. The period of two years which Senator Robinson has in mind is different, not just in length but in quality, from the period of five years. We looked at different lengths of time and we picked a period of five years because for a number of reasons we felt a longer one would be unreasonable and a shorter one might be unwise or unreliable. I do not pretend there is any particular virtue, or magic, or meaning in a period of five years. It is not so long that it constitutes a requirement on people to put up with a bad situation for an unconscionably long time, nor is it so short that it might be an invitation to people lightly to get out of a marriage.

One of the fears expressed when the question of divorce was raised first was that we would end up with divorce on demand. It can be said about the present proposals that they are not divorce on demand because there is a five year time limit. I would not agree with some of the previous speakers that the proposed procedures are restrictive. What saves them from being the exact opposite to restrictive is the fact that there is a five year limit which gives time to people to reflect and to have second thoughts. It is now suggested that the limit either be reduced to two years or withdrawn altogether. If either of these amendments were adopted the situation would be that we would have something that was as near to divorce on demand as makes no difference. If you leave out the time limit on the proposals before us, there is very little difficulty in complying with the other conditions because a person can obtain a divorce without the consent of the other spouse by separating for three years, obtaining a separation order and after two further years applying for divorce and obtaining it if the marriage has failed. The setting of a time limit is the only restrictive aspect of the amendment to the Constitution. Any interference with the time limit would be completely undesirable.

I should like to take up the Minister's explanation for the wording of the second condition — the failure has continued for a period of or periods amounting to at least five years. He made the point that the reason for this is that the Government are anxious to ensure that if there was any possibility of reconciliation it would not be hampered. The parties could have the possibility of reconciliation, then there could be a period of failure, then a period of reconciliation and a further period of failure. That was the thrust of the explanation.

I am sorry to interrupt the Senator. I do not mean to be rude by doing so, but it is not so much the last interpretation that Senator Robinson put on it, because obviously, if there was a period of failure and a period of attempted reconciliation that did not work out, you could not call that reconciliation. We wanted to make sure that there was no obstacle to people attempting a reconciliation. We did not want to close off any avenue that people might feel was open to them.

That clarifies the Government's thinking on this. Surely it emphasises the fact that the word which fits more appropriately into that thinking is the word "breakdown". If you have a breakdown then you make attempts at reconciliation. If those fail you then get to the stage of it being established that the breakdown is irretrievable. This is the language that fits the situation. It really is bending the use of the term to employ it in the way that the Government are in the interests of being able to put forward a political aura of finality.

I very much share the concern to ensure the parties are not deterred from seeking reconciliation. I am worried about having a period of five years as a precondition to a divorce, whether it be a five year separation or establishment of failure dating back for five years. That may well be something that will deter parties from exploring further possibilities of reconciliation. There are a number of very serious and responsible social workers, psychiatrists and psychologists who have expressed this view. They are worried about the implications, particularly of the constitutional provision, that the failure would have to endure for a period of five years. It is stretching beyond the normal bounds of the word "failure" to use it in the context of a period of, say, two years and then if the parties attempt a reconciliation to break the period and then start the clock running again if that reconciliation does not succeed.

A much more straightforward, reasonable and honest approach would be this: that there has been a breakdown of the relationship; the breakdown is not a final one because the parties consider the possibility of reconciliation. When that does not work out they again either separate or live apart in a legal sense and when they conclude that there is no possibility of reconciliation, then it becomes an irretrievable breakdown. In his response to this amendment the Minister has inevitably conceded the point that the use of the word "failure" here — although it may be for political reasons — is not legally a very happy choice of phrase. It is even less happy when we have to continue this failure for a period or periods of five years.

If a couple had difficulties in their marriage, had separated and then they decided to seek a period of reconciliation, I find it difficult to envisage a court not concluding that the failure must have commenced after that attempted reconciliation. If the word "failure" is supposed to be so final, so different from "breakdown" and from all the things we were talking about in relation to the other amendment, then we cannot have efforts at reconciliation in the middle of it. That would not be failure, whatever else it may be. It may be "breakdown", but it will not be "failure" if failure means something. I am getting lost. It must be the number of hours we have been at this but I do not get any wiser as we continue to discuss this proposal.

It certainly will be cumulatively extremely restrictive. By the time a person seeking a divorce has satisfied all the conditions whereby a marriage has failed, and we know that means not just the grounds on which the decree of judicial separation was given or the fact that there is no possibility of reconciliation but something else — what it means we are not sure — that something else must have lasted for at least five years and they must have lived separately for at least five years. I ask the Minister to clarify what the Government have in mind in relation to living separately. By the time a person has established all that to the satisfaction of a court, if they are not dead, they would be entitled to their divorce.

The alternative is that they might have made an effort at reconciliation, which is what the Government hopes they would do.

On the question of failure, I am very sorry if Senator Robinson does not feel that she is gaining any wisdom from this discussion. I cannot honestly see how there can be such great difficulty in grasping the concept of failure or grasping the possibility that one inspects a particular relationship and finds that it has failed. One might feel that one wants to go back and inspect it again and still find that it has failed. I cannot see why there should be great difficulty in accepting that.

In relation to separation —"living separately" is Senator's Robinson's phrase — that is normally taken to mean living separately in separate locations. Courts in England and elsewhere have admitted the concept of people living separately in different households in one house. I would not exclude the possibility that the same construction could be put on the term here. For the sake of completeness, I would point out that the concept of separation, even if we look at it from that point of view, must for the sake of completeness, I should make the point that the concept of separation, even if we look at it from that point of view, must also involve an element of intention at being separated so that people who are involuntarily separated would not find themselves either being taken to fulfil this criterion or being able to argue that an involuntary separation did fulfil it, for example, in the case of imprisonment.

On the point of "involuntarily living apart", I assume the Minister accepts that if one party leaves the other, even though the other party may not want this, that is not a question of voluntarily living apart, it may be just a situation in which a person can find himself or herself. Unless I have misunderstood the Minister — and I do not think I have — he is saying that although the concept of "failure" and "failed" means something very definite, very final and different from the grounds on which the court could give a judicial separation, we have established that that is very difficult to square with a relationship getting into difficulties, there being a breakdown in that relationship, the parties perhaps separating or living separate lives under the same roof for a period, and then deciding to go to a marriage counsellor to get some advice on how to get their marriage back together again. If a couple are doing that, it is very hard to say that there has been a failure of that marriage at that stage. How can the court conclude that there has been a failure at that stage because they are working on the continuation of their marriage relationship? Surely it has not failed at that stage? You then start the clock again, and the five years dates from when that attempt had not succeeded. In which case, by the nature of it, failure is something that once established, is final. It has the finality the Minister was looking for in relation to the last amendment, and then you have to start the clock again and have five years after that. It is a very strange Alice in Wonderland use of words — I have to use the word "unfailure"— to have a period of failure and then a period of unfailure and then another period of failure, so that the two periods of failure can be added to make up five years. It is very inelegant and very indefinite. What we are talking about is breakdown but we should be talking about whether that breakdown is irretrievable, then we would not have these difficulties. It is important to criticise, and to continue to criticise, the use of this term.

I agree with Senator Ross in his characterisation of the five years of establishment of failure as ultimately being punitive for a couple. If they already have a judicial separation and there is no possibility of reconciliation, then to prescribe five long years for the establishment of failure is punitive. I am happy to have a certain period and I propose that a period of two years would be a reasonable period to insert, if we are having the conditions included in the Constitution. It is undesirable that we would have a punitive measure in our Constitution which is also nebulous, worrying and hard to define. It is very hard to understand how failure can be switched on and off.

"Punitive" is a relative term. Whatever Senator Robinson and Senator Ross might think about this provision, it is a lot less punitive than a system in which there is no possibility of a dissolution. As far as the period is concerned, it is really a judgmental matter. The Government have decided that five years is a reasonable term. It is not so long as to the excessively punitive, and it is not so short as to be an incitation to people lightly to get out of marriage.

Finally in relation to the period of five years or periods amounting to at least five years, we could simply have said in condition ii that the failure had continued for a period of five years. I think that would be defensible but we put in the other qualification simply because we felt that, although it might not happen in many cases, it would create another obstacle — perhaps its effect might not be great — to people trying to affect a reconciliation.

On the "failure", "unfailure" and "failure" question — I know this is an argument that cuts both ways, it is like arguing with somebody whom you know is not going to change his or her mind — there is a period of failure when they are making their point to you, a period of hoped-for unfailure when you are making your point to them, and then a period when you establish once more that there has been failure.

Cuireadh an leasú agus fáisnéiseadh go rabhthas tar éis diúltú dó.

Amendment put and declared lost.
Niór tairgeadh leasuithe Uimh. 5, 6 agus 7.
Amendments Nos. 5, 6 and 7 not moved.

Under Standing Order 100 there is a provision that during the progress of a Bill through the House, corrections of a verbal or formal nature may be made under the direction of the Chair. I would ask you, Sir, to make such a direction in relation to line 4 on page 7, where the word "páirtithe" is misspelt, the first "t" is missing, to have it corrected.

I will direct the Clerk to make the correction.

Tairgeadh an cheist: "Gurb é an Sceideal an Sceideal don Bhille."

Question proposed: "That the Schedule be the Schedule to the Bill."

I want to ask the Minister two questions which relate to the provision in the proposed new subsection which states that, "The court must be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse and for any child of, or any child who is dependent on either spouse". First, is the Minister satisfied that this provision gives any worthwhile long term protection to the individuals for whom it is intended to be a safeguard in that the court, in arriving at its decision, can only have regard to the circumstances which obtain at the particular time? These circumstances can change abruptly as a result of illness, accident or some other factor. Secondly, what would happen where a husband who has no assets or property other than his weekly income of, say, £300 and a personal accident policy which provides for cover of, say, £100,000 in the case of death, on obtaining a divorce from his wife? They have two dependent children, and he is ordered by the court to pay his wife and dependent children £100 a week. Subsequently he remarries, as a result of his remarriage he has one child by his second wife. He then obtains a divorce from his second wife and the court rules that he must pay his second wife and her child £100 per week, and he remarries again——

He would be very old by then.


——and shortly after he remarries he dies or is killed in an accident. What happens to the proceeds of the personal accident policy? In other words, who gets the £100,000?

The person who is entitled to inherit on his estate at the time he died which, in the case Senator Mullooly mentioned and, in the somewhat unlikely event that there are children of each family——

He has 80 children.

——would conceivably include every one of the children of each of the families because, as I pointed out last evening, they would all have succession rights to their father. In the case of changes in circumstances — substantial changes in circumstances can happen in cases where there is no divorce and where people trundle along with a happy marriage — provision made by a court under this proviso is an order of the court and, therefore, falls to be given effect and implemented with the authority of the court, and cannot be treated with contempt any more than any other order of the court can.

On the section in so far as it makes adequate and proper provision, having regard to the circumstances, for any dependent spouse and for any child of or any child who is dependent on either spouse — the Minister has already clarified this point but I have seen it queried — I understand that it will extend to any child who is dependent on either spouse but not necessarily the child of either spouse. Is that so? It could be an extramarital child, a child who is factually dependent, a child born out of wedlock prior to a marriage. Would it extend to any of those, where there was a dependency of a child on a spouse?

I presume this would be somewhat parallel to the present provisions of the maintenance Act, whereby children to whom the people are in loco parentis and so on are included as well as the children of the marriage.

I urge the Minister to repeat his assurance. He does not need to convince me but, given the speeches that have been made in this debate in both Houses, I ask him to repeat, on behalf of the Government, yet again an assurance that in relation to provision, particularly for the low income households that Senator Mullooly made reference to, the Government will be directing the appropriate Departments to examine the situation that arises in relation to, let us say at the moment, women who are separated and so forth. I ask him to repeat his assurance that the intention of the Government is that no woman who is separated will be financially disadvantaged if she gets divorced and that such anomalies as may arise will be removed speedily. I am asking him to do this because I feel there has been genuine concern, but some concern which is not concern at all but is by sheer mischief being sown in the minds of many people. For that reason he will not be in the least tedious if he repeats a statement which was made not on his behalf but on behalf of the Government. I urge him to do so again as we are nearing the conclusion of this debate.

I am grateful to Senator Higgins for his reminder. The Government have, as I pointed out earlier in the debate, decided that the necessary changes in social welfare arrangements would be made to ensure that no spouse would be disadvantaged in terms of his or her social welfare entitlements as a result of a change of legal status from married, separated, or deserted to divorced.

Regarding the points raised by Senator Robinson and Senator McGuinness I can confirm that that is the case.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.
Cuireadh agus aontaíodh an cheist: "Gurb é an Teideal an Teideal a ghabhann leis an mBille".
Question, "That the Title be the Title to the Bill", put and agreed to.
Aontaíodh na Céimeanna eile a thógáil inniu.
Agreed to take remaining Stages today.
Tuairiscíodh an Bille gan leasú agus glacadh an Bille chun an breithniú deiridh a dhéanamh air.
Bill reported without amendments and received for final consideration.
Tairgeadh an cheist: "Go rithfear an Bille anois."
Question proposed: "That the Bill do now pass."

There are two things I want to say. One is to express very personal satisfaction that this Bill is passing this House today. The second point I want to make is to thank all the Members of the Seanad for the way in which they have facilitated the passing of this measure even though there has been some inconvenience, as we have sat on days on which we do not customarily sit.

Let me briefly thank the House for the patience with which the amendments for which I had responsibility were debated and examined. I did not envisage, coming in here this morning, that it was likely that the text of the Bill would be amended at this stage. The political realities are such that it was unlikely, but the debate on the amendments has clarified the scope of the provisions. I have said on a number of occasions what this debate really establishes, that the text of the Government's proposals is very restrictive, that it will make it extremely difficult for a person applying for a divorce to satisfy a court in relation to all the conditions and that it will require the court to be satisfied that a constitutional guarantee in relation to the first family has been upheld. It is worth bringing home that that is the first time it has been explicitly inserted in a Bill to amend the Constitution.

Therefore, having had reservations which were reflected in the amendments which I put forward and having failed to get support in this House for those amendments, I now welcome the passage of this important measure. As the Minister said, although some of the provisions may be regarded as being very restrictive or even punitive by some of us, it is a very important measure, an extremely important social reform and it is vital that it go from this House as a measure that has not divided the House, with the full support of those of us who see the need to introduce some legal remedy for those who have been caught up in a problem of marriage breakdown, for all those first families who are suffering so badly in the present situation, for all those couples who have been trapped in that situation and who need a remedy.

It is extremely important that, apart from a careful consideration of the constitutional and legal issues, the public should have compassion and concern for those people and that we do not turn a blind eye to the realities which are there now which oppress so many men, women and children and which we must take steps to change and provide a remedy for. Therefore, although I have been a critic of the small print of this Bill, I welcome it very much, I support it strongly and I hope those of us who support it will ensure that there is an honest, clear and straightforward campaign so that the people will realise what is envisaged, how very strictly, carefully controlled and prescribed the conditions are but that we must have the possibility of introducing divorce legislation for those who have been waiting so long for legal redress.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.