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 court...to 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.