I remind Senators that they may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded.
Family Law (Divorce) Bill, 1996: Report and Final Stages.
I move amendment No. 1:
In page 9, between lines 14 and 15, to insert the following:
"(b) ‘persons qualified to help' in paragraph (a) are deemed to be persons who have completed a recognised counselling course,".
This amendment arises from concerns expressed on Committee Stage about the provision that solicitors must give an applicant the names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged. We were concerned about how "a person qualified to help" will be defined and what constituted "qualified". This is an important consideration because the court will have to be satisfied that there is no reasonable prospect of a reconciliation between the spouses. How can a court be satisfied if qualified reconciliators have not been involved in the reconciliation process? How could the court be satisfied when all that might take place is a procedural charade where the solicitor supplies the applicant with names and addresses of persons qualified only according to his criteria?
The objective of the amendment is to find a definition or criterion which will introduce consistency and assist solicitors in interpreting this clause. It will assist the court to be confident that the procedures related to the objective of there being no reasonable prospect of reconciliation have been reasonably attempted and that it is not simply an empty procedure. It is impossible to say in conscience that the court can be satisfied if the person deemed qualified to help does not have a recognised qualification and experience in counselling and does not satisfy what might be regarded as minimum requirements in that respect. This amendment is an attempt to find a definition, thereby not leaving anything to chance. One could even envisage circumstances where a court could come up with different conclusions about the qualifications of individuals.
The proposed legislation opens a minefield of potential contradictions. If we are serious about there being no reasonable prospect of reconciliation there has to be a better way of defining "a person qualified to help". There is also a gross shortage of conciliation services and there are long waiting periods for the existing services. It is perfectly plausible that people who have no qualification will strive to set themselves up as professional conciliators. If more people come into this area, as they are bound to given that it is a growing market, there has to be a control on entry, such as a professional requirement. I do not know how one can effectively achieve that without constructive thought. This is not necessarily the best way of going about it but on Committee Stage I was concerned that the issue was marginalised. We are not fulfilling our responsibility to the electorate about a reasonable prospect of a reconciliation unless it is clearly thought through.
This issue was discussed at great length on Committee Stage and Senator Lee and I were disappointed with the Minister's response. I draw the Minister's attention to what is intended in section 6 of the Bill —"Safeguards to ensure applicant's awareness of alternatives to divorce proceedings and to assist attempts at reconciliation". Leaving aside the commitment we gave when the referendum Bill was put before the people to proceed with the divorce legislation in a particular way, if we were to fulfil the obligation set out in the heading to section 6 we would need to do exactly what Senator Lee and I propose in amendments Nos. 1 and 3.
Obviously, we want to ensure the applicant's awareness and that will be done by way of the solicitor informing the couple that there is an alternative to divorce but, if we also want to assist attempts at reconciliation, we must do a little more than just leave it to the discretion of solicitors to get lists of groups or individuals.
The Minister mentioned on Committee Stage the number of bodies already receiving grant aid from the Department and he stated during the course of the debate that none of them were on a statutory footing. Leaving that aside, there is still scope for the Minister to identify reputable groups and bodies and communicate them to solicitors' practices so they can have at least some knowledge of them when they inform a couple about them.
On Committee Stage I said that if we were to live up to the personal commitments the Minister, Members and I gave when canvassing support for the referendum, then we must live up to the spirit and word of the Bill. Having heard the lengthy debate on Committee Stage, I ask the Minister to respond in a more positive way now that we have reached the end of the road. I ask him to consider the amendment favourably and respond accordingly.
People are concerned, not just in this field but in many other areas, that counsellors are setting themselves up without anybody having much knowledge of their qualifications or whether they are involved with a reputable counselling organisation. The spirit of this amendment is my main concern. We should try to ensure that solicitors, who I hope will make every effort to assist reconciliation within the marriage, refer people to counsellors who have some form of training in this field and who, if possible, now that various organisations are being set up, are members of a recognised body.
This is an area in which there is an enormous amount of money to be made. Counselling is the buzzword at present and everybody seems to need counselling after any episode in their lives. It is important we recognise that. I hope those who set themselves up to undertake counselling will require some form of recognised qualification in the future because if the counselling given is defective, it is far worse than if the person received no counselling.
Section 6(2)(a) of the Bill requires a solicitor to discuss with the applicant for a divorce the possibility of a reconciliation and to give to him or her the names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged. There is a similar provision in the 1989 Act which deals with separation proceedings.
This amendment proposes that persons qualified to help to effect a reconciliation as provided for in subsection (2)(a) be deemed to be persons who have completed a recognised counselling course. As framed, the amendment would mean that a person who helps to effect a reconciliation may be qualified, regardless of whether they completed such a course. If the real intention of the amendment was that persons qualified to help to effect a reconciliation must have completed a recognised counselling course, it would have to be framed to state precisely that; it does not do so. I can only address the amendment as framed and it cannot be accepted on that basis. It would not be acceptable that a person qualified to help effect a reconciliation be deemed to be a person who has completed a recognised counselling course when the person in question never attended such a course.
Counselling services are undergoing development at present. In recent years, much has been achieved by reputable counselling organisations such as Accord, Marriage and Relationship Counselling Services, the Irish Association for Counselling and Therapy, etc., to regulate the profession, set standards for their members and engage in dialogue between themselves with a view to standardising protective procedures and training and providing for accreditation of persons by the Irish Association for Counselling and Therapy. To date, however, the various counselling organisations have not reached the stage where there is a commonly recognised counselling course. As the service develops, that stage will eventually be reached.
The absence of a recognised counselling course does not mean that such courses do not exist. Many reputable organisations are providing excellent training for their members who, in turn, are providing counselling services of the highest quality. My Department provides annual funding, this year's provision is in excess of £900,000 for over 70 counselling organisations nationwide who are providing excellent services. The Government is committed to the continued funding of these organisations to ensure their ongoing development.
I regret that I cannot accept the amendment.
I am not sure I understand the Minister's reply; if I did I suspect I would not agree with it. However, I will express myself in very restrained terms regarding the line taken by the Minister in response to a proposal, the intent of which is to attempt to reduce the degree of unhappiness that attends marital breakdown. I believe the Minister's reply is irresponsible but its positive reference to the organisations assisted by his Department strengthens the case made by Senator McGennis in amendment No. 3. I hope the Minister will find that amendment correct in terms of its use of language. I am very disappointed with the composition, construction and ethos of the Minister's reply.
Amendment, by leave, withdrawn.
Recommittal is necessary in respect of amendment No. 2 as it does not arise out of Committee Stage proceedings. I ask Senator Lee to move for recommittal.
I move: "That the Bill be recommitted in respect of amendment No. 2."
Bill recommitted in respect of amendment No. 2.
I move amendment No. 2:
In page 9, between lines 14 and 15, to insert the following:
"(c) that the provisions of paragraph (a) shall not apply in cases where at the date of the passing into law of this Bill one or both spouses is already cohabiting with another partner,".
The purpose of this amendment is to clarify what might have been taken as a misunderstanding about the motive behind the attempt to clarify the meaning of "qualified to help". Some people believe that, if it were applied rigourously, implementation of the Act would be slowed down until a sufficient number of properly qualified people were available. This could only occur if the Government was willing to increase the supply as a matter of priority which it is clearly not prepared to do. There is a substantial number of existing marriages which have broken down irretrievably. There are also marriages in which partners have been cohabiting for some time with a second partner. No purpose is served by suggesting that a reconciliation process ought to be embarked upon in such cases. It is difficult to know where the balance is in the scales of human suffering but there is no point in trying to reopen relationships which have been superseded by functioning, new ones. Far from intending to delay matters, the purpose is to address marriages which have not broken down irretrievably and not to subject those who are well beyond that stage to the same procedure. It was an attempt to humanise the procedures contained in section 2 (a) and no other purpose should be imputed.
The effect of this amendment would be to release solicitors from the obligation under section 6 of the Bill to discuss with their client, prior to the institution of proceedings for divorce, the possibility of a reconciliation between the spouses where either the client or the spouse of the client is cohabiting with another partner. The amendment makes the assumption that where either of the spouses are cohabiting with another person there should be no need for the solicitor to discuss a reconciliation. I do not agree with that assumption because there may be some cases in which a spouse, athough cohabiting with another person, is prepared to discuss with his or her spouse the possibility of a reconciliation. Moreover, the Constitution requires that, before granting a decree of divorce, the court must be satisfied that there is no reasonable prospect of a reconciliation between the spouses.
If the spouses have not engaged in any attempts at reconciliation, notwithstanding the furnishing to them of names of counsellors qualified to help effect a reconciliation, this may constitute to the court some evidence that there is no reasonable prospect of a reconciliation. It will, of course, be open to the court to address the matter further. The provision in the Bill is satisfactory and it should not be changed as proposed in this amendment.
I can see the force of the Minister's argument. There is a certain incongruity in the way he is arguing this and perhaps he may say the same about me. I do not subscribe to the view that it is not possible to achieve a better Bill than the one before the House. The Bill does not take full cognisance of the variety of human situations where marriages have broken down and the different circumstances pertaining in cases where people have left their first marriage. Within reason, cognisance should have been taken of those in order to minimise the degree of hurt involved. I accept that there are arguments against my amendment but there are stronger arguments against what is contained in the Bill. However, I will not press the amendment.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
As amendment No. 3 arises from Committee Stage proceedings it will require a seconder.
I move amendment No. 3:
In page 9, after line 47, to insert the following:
"(6) The Minister may make regulations to allow for the establishment of a Register of Professional Organisations whose members are qualified to assist the parties involved in effecting a reconciliation, such register to show the names of members of those organisations and procedures to be put in place for the organisations involved to regularly update the membership lists.".
I dealt with this point during the discussion on Senator Lee's amendment. We mentioned the use of language on Committee Stage — the term "McGennis-speak" was used — and perhaps we should stick to simple language. I know exactly what Senator Lee intended in his amendment but it appears that, on a legalistic interpretation, it would not stand up.
I know what Senator Lee intended in amendment No. 1 but it is not what the amendment provides.
Given that it was not written in "McGennis-speak" it would not stand. I hope my simple and easily understood amendment is acceptable to the Minister. I passionately made the case for this amendment on Committee Stage and referred to a specific case of which I was aware. Members of other professions have mentioned that people set themselves up as counsellors, therapists or family mediators. It is a growth industry. I do not suggest that the names of groups be enshrined in legislation but following the passage of this Bill, the Minister should, by regulation, notify groups which in his opinion provide a good service to those who need counselling, advice and support. The Minister has great experience dealing with the groups we named today and on Committee Stage.
My amendment is even simpler than that of Senator Lee. I do not want charlatans to be able to recommend themselves as qualified counsellors and to have in their hands the future of a couple in dispute. Such couples should only be advised by people trained for the purpose. I believe the Minister can take this amendment on board. Unless we include this specific provision or do something positive in this area, we will not live up to the spirit of the legislation or the spirit of our arguments to win the slim majority in favour of divorce. I ask the Minister to accept the amendment.
I second the amendment. In addition to the persuasive points made by Senator McGennis, I stress that this is an enabling provision which would allow the Minister, by regulation, to draw up a list of qualified people. It is not mandatory and it does not tie his hands or those of his successors in title. For that reason and given that we are all anxious to maintain and support the institution of marriage where possible and where there are problems to do everything to effect reconciliation through the intervention of highly qualified professional counsellors, this amendment must commend itself to the Minister.
I also hope the Minister can accept this amendment. From what he said in reply to amendment No. 1, he recognises that the professional organisations of counsellors see the need to organise on a professional basis to protect the many well-trained counsellors of good repute. These organisations, some of whom the Minister has mentioned, are ideally placed to undertake counselling in these sad circumstances. Solicitors will direct applicants to those bodies. It should not be a matter of looking through the Golden Pages to see who has the biggest advertisement, but that might be the case if we do not make efforts to ensure that only people with training who belong to a reputable organisation will become involved in counselling.
I support this amendment. I forgot to mention earlier that Senator O'Toole asked to be associated with the spirit of my amendment and of this one, for the reasons mentioned by Senator McGennis and Senator Henry. This is the absolute minimum which the Government ought to be prepared to accept, if there is a genuine commitment to the conciliation process. It would be a sad reflection on everything which has happened if the Minister were not prepared to accept it in the restrained and clear phraseology in which it is expressed by Senator McGennis.
I fully appreciate what this amendment and that of Senator Lee propose to do. The matter is of concern to all. In my experience as a practising solicitor of giving advice under the Judicial Separation Act and about available services, it is often difficult to know what qualifications are possessed by those to whom one refers clients. People in the legal profession, having practised in family law, tend to know who they are dealing with in that area so it works out relatively well. There is a shortage of qualified people in various parts of the country and that is another problem which this legislation cannot tackle.
The amendment gives the Minister the power to make regulations but it is ultimately a matter for the counselling organisations to administer themselves. It should not be for us as legislators or for the Minister to do their work for them by keeping a register of membership. The Law Society, the Bar Council, the Irish Medical Council, auctioneers, accountants and various other professions regulate and set standards for themselves and that must ultimately happen in the counselling service also. We should not make amendments for the sake of it or include phrases in legislation in order to salve our consciences. In the long run, it is for the counselling services to organise themselves, although I appreciate what the proposer of the amendment is trying to do.
The proposers of the amendment have good intentions. It is not a difficult amendment for the Minister to accept but there is one matter I do not understand. I am impressed by the fact that is an enabling provision. We all have experience of good and bad in every organisation and I have heard about good and bad counsellors. This provision does not guarantee anything but, given that it empowers the Minister, I hope he can accept it and use it.
This amendment, which was also put down on Committee Stage, would enable the Minister for Equality and Law Reform to make regulations establishing a register of professional organisations in the field of counselling and mediation. I indicated on Committee Stage that I was unable to agree it was a function of my Department to establish a national register of organisations or persons deemed to be qualified to practise as family counsellors or mediators. For the moment, organisations involved in counselling and mediation are in the best position to set the standards and qualifications for persons engaged in the provision of such services.
I will inform Senators of the present position on the counselling and mediation services which are available. The Mediators Institute of Ireland have already set standards necessary for accreditation and training of mediators. Similarly, in recent years, much work has been done by organisations involved in counselling to regulate the profession, including the establishment by the Irish Association for Counselling and Therapy, which is the accrediting body for counsellors, of a national register of individual counsellors.
Recently, officials of my Department met representatives of counselling organisations and there was general acceptance that accreditation by that association was one important way to establish standards among counselling agencies. My Department has, of course, responsibilities which relate to the funding of certain marriage counselling organisations as well as the funding and administration of the family mediation service. Substantial funding totalling £900,000, which represents an increase of 50 per cent over previous years, is available this year to help with counselling. This is being used to assist those organisations in their work to develop that professionalism and to encourage them to expand and develop counselling and related services. For the first time, assistance is available this year to organisations providing counselling services to children whose parents have separated.
Altogether some 70 counselling organisations nationwide are receiving assistance from my Department. That is the strength of the Government's commitment to counselling. It has been generally acknowledged by counselling agencies that the increased funding over the past couple of years has helped to transform the assistance provided by the counselling organisations and that the number of counselling hours provided has increased by almost 58 per cent over the years 1993 to 1995.
In 1996, I provided £300,000 for the family mediation service which is more than double the amount allocated in 1993. The funds available this year have strengthened and developed the service. The development plan for the family mediation service involved the opening of a new centre in Limerick and there will in future be an input from other organisations and private individuals. As at present, the mediation service will engage only persons who have certain prescribed qualifications.
On Committee Stage I undertook to make available to the legal aid board a list which includes the names, addresses and telephone numbers of the organisations involved in mediation and counselling which receive funding from my Department. This has now been done. In addition, my Department has written to the Incorporated Law Society of Ireland and furnished them with the same details for circulation to their members. My Department also intends to publish this information in the next few weeks as part of an information guide to family related services funded or supported by the Department of Equality and Law Reform. This will be given a wide circulation. This approach meets the spirit, at least to some extent, of what the Senator's amendment seeks to achieve for the moment. At a later stage, however, I accept that the question of regulations may arise. Accordingly, in view of the limited function which is envisaged for the Minister in the amendment, namely that he may make regulations to allow for the establishment of a register, I am prepared to accept this amendment.
I acknowledge the amount of additional finance the Minister has made available to counselling services. The bottom line of the Minister's lengthy reply, for which I thank him, is that he will accept the amendment and I am pleased to hear that.
In response to Senator Gallagher's comment that we may be trying to settle our own consciences, I am certainly not trying to do so. There is nothing that I feel particularly guilty or innocent about and I would do the same thing if the campaign recommenced tomorrow. I am grateful to the Minister and thank him for accepting this amendment.
Amendment agreed to.
An Leas-Chathaoirleach
Recommittal is necessary in respect of amendments Nos. 4, 5, 6, 7, 8 and 9 as they do not arise out of Committee proceedings. I ask the Leader to move the motion for recommittal.
I move: "That the Bill be recommitted in respect of amendments Nos. 4 to 9, inclusive."
Bill recommitted in respect of amendments Nos. 4 to 9, inclusive.
Government amendment No. 4:
In page 13, lines 19 and 20, to delete "either of the spouses concerned" and substitute "the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned".
This is a technical drafting amendment.
Amendment agreed to.
Government amendment No. 5:
In page 15, line 46, to delete "to continue".
This is purely a drafting amendment.
Amendment agreed to.
Government amendment No. 6:
In page 18, line 13, to delete "section 10(1)(c)" and substitute "paragraph (c) or (cc) of section 10 (1)".
This is purely a technical amendment.
Amendment agreed to.
Government amendment No. 7:
In page 24, to delete from and including "it was" in line 15, down to and including "applicant" in line 17 and substitute "proper provision in the circumstances was not made for the applicant".
This is a drafting amendment to bring the wording in section 17 into line with the phraseology used elsewhere in the Bill.
Amendment agreed to.
Government amendment No. 8:
In page 25, line 1, after "divorce", to insert "or at any time thereafter".
This is purely a drafting amendment.
Amendment agreed to.
Government amendment No. 9:
In page 26, line 17, to delete "is made" and substitute "exists or will be made".
This is a drafting amendment to bring the wording of section 19 into line with section 16 of the Family Law Act, 1995.
Amendment agreed to.
Amendments Nos. 4 to 9, inclusive, reported and agreed to.
An Leas-Chathaoirleach
As amendment No. 10 arises out of Committee proceedings it will require a seconder.
I move amendment No. 10:
In page 27, lines 29 and 30, to delete "the spouses concerned anticipated that the member would be educated or trained" and substitute "he or she could reasonably have been expected to have been educated or trained".
We discussed this amendment briefly on Committee Stage when I thought the Minister was not unreasonable, at least by the standards of other proposals, in undertaking to consider it in the context of the Children Bill. However, the more I think about it the more potentially important this issue is. If we ask what are the prospects of children in divorce cases, a great deal of their future will hinge on the education they receive. Education will be central to their possibilities later in life. They will have to cope with a certain degree of emotional disruption and I would argue that education is even more important in their case than it is in the case of others.
Subsection (4) (e) states: "the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,". The Bill is based on the assumption that spouses will disagree. The legislation seeks to provide a procedure for, and to channel within a certain framework, the scale and consequences of disagreement. When we come to the future education of children, the assumption underlying this seems to be that the spouses concerned agreed that they were as one in anticipating how the child ought to be educated. In practice it is more likely that there will be disagreement because of financial implications or on objective intellectual grounds. At that stage people's disposition is to disagree on nearly everything. There might even be disagreement because the children are being used as bargaining chips where hostility has arisen.
Simply relying on the anticipation of the spouses is too vague. What is the court to do in cases where there are differences between the spouses? Even if they agree the court might take the view, and should be authorised to so do, that the future education of the child should be to some extent independent of the anticipations of parents whose commitment to the child in the first instance was not strong enough to sustain the marriage. That is not to say they do not love the child, but the welfare of the child was not necessarily their first concern. The court might have to anticipate, in the case of a five year old or younger child for example, what will be the trajectory of educational opportunity and so forth for many years in the future. That is why the amendment seeks to substitute the phrase "he or she could reasonably have been expected to have been educated or trained". It allows the court to take into consideration a range of issues which the phraseology of the Bill does not.
I seriously question whether the spouses concerned are in the best position at that time to decide the matter, even if they agree about what is anticipated. If they disagree, what can the court do? This is no-fault legislation so the court is not in a position to allocate responsibility for the breakdown of the marriage. How does it decide whose view should take precedence when parents disagree on anticipations regarding education or training? This is perhaps the single most important decision that can be taken about the future of the child and a wider range of considerations should be taken into account than parental anticipations at that moment.
I second the amendment.
I support the amendment. There is precedent in the development of family law for this amendment. Long ago, the rights of one or other of the parents were considered the primary rights in terms of the custody and welfare of the children. At first it was seen as the primary right of the father. Happily that changed following the passage of the Married Women's Status Act, 1957, under which the rights of both parents were considered of equal value. Subsequently the rights of both parents were considered to be secondary to the rights and welfare of the children. It is essential that precedent be endorsed in legislation. Senator Lee's proposal is in harmony with the development of family law, particularly with regard to the primary rights of the children.
The children are dependent members of the family and will not themselves have been responsible for the breakdown of the marriage. If they were consulted and could have their views adopted there would not be a breakdown. They are the primary victims of marriage breakdown where adults who enter freely into a contract — if one is to call it no more than that — have neither the capacity nor, in some cases, the responsibility to adhere to it. For that reason the amendment should be incorporated into the Bill. The court should not be tied to a provision which simply states: "the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained".
Senator Lee has put the case correctly. In the sad sequence of events it is likely that there will not be agreement between the spouses concerned. There might be a definite division between them as to how the member should be educated or trained. Often it might have been one of the causes of the lack of responsibility or commitment on the part of the parents who are choosing to divorce. Senator Lee's proposal is not only desirable but in line with developments in our courts which ensure that the primary interest to be considered is that of the children and their future, including the educational standards to which they can aspire. In some cases the parents might not have much concern for education for one reason or another and in many cases it would be the least of their concerns at that point. It is important that this amendment, which provides for the "reasonable expectations" of children having regard to the circumstances, is accepted and that the court be allowed to take that into account. The court could determine what would be a reasonable expectation of education and training for the unfortunate victim of marriage breakdown.
As I indicated when the same amendment was discussed on Committee Stage, the provision in the Bill is similar to provisions in the legislation of 1989 and 1995 in relation to separation proceedings where children are concerned. In separation proceedings at present the parents are asked to assess and anticipate what are the education and training needs of their children now and in the future. The parents have that responsibility irrespective of whether they are separated.
If they act on it.
The parents make the assessment because of the age of the children in many cases and because of the legal responsibilities they have in relation to their children. There will be cases where the age of the children is such that their wishes can and should be taken into account by the parents.
Is there a legal obligation on parents to do that for 15 year olds?
The legal obligation is there——
What is it?
——and they remain their children whether the parents are separated or divorced——
What is it in terms of education and training?
They have responsibilities to their children.
I want clarification of the terms used by the Minister. He referred to legal responsibility. Where is the legal responsibility of parents to provide for education and training?
An Leas-Chathaoirleach
The proposer of the motion is the only Member who has the right to speak a second time on Report Stage.
I am seeking clarification of the Minister's terminology.
An Leas-Chathaoirleach
The Minister without interruption.
Senator Lee's amendment refers to section 19(4). Subsection (4) is a subsection of the main operative section dealing with maintenance and other support orders. The proposed amendment should be examined in that context. Subsection (4) states: "Without prejudice to the generality of subsection (1)". Subsection (1) provides:
In deciding whether to make an order under section 11, 12, 13, 14 (1) (a), 15, 16, 17 or 21 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances is made for the spouses and any dependent member of the family concerned.
The overriding obligation in subsection (1) requires the court to ensure that such provision as the court considers proper, having regard to the circumstances, is made. Subsection (4) is without prejudice to the generality of that and provides certain guidelines. It seems to me, and perhaps Senator O'Kennedy is more skilled, that the situation Senator Lee envisages would be well covered by the overriding provisions in subsection (1), which is the main operative guideline under which the court operates. The court has responsibility to have regard to the circumstances and additional guidance is given to the court in subsection (4).
I indicated I would look at this amendment again in the context of the Children Bill which is being prepared in my Department and I understood Senator Lee was reasonably happy with that undertaking. I have some reservations about the proposed amendment. I have yet to satisfy myself that the amendment can and that it should be made. It is a matter which I will be glad to consider further in the context of the Children Bill which is being prepared at the moment.
I understand law even less than I understand the English language, so I will not argue with the Minister on that basis. If subsection (1) provides cover, I do not see why my amendment should not be covered by the phraseology there. I prefer the phraseology and the intention in my amendment. The Minister is right when he said that I indicated on Committee Stage a degree of assent to his willingness to consider it. The reason I have changed my mind is that the more I thought about it, the more important the implications seemed to be. There are big numbers involved. We could be talking about thousands of children given the flood of applications anticipated. It is arguably the single most important decision the courts will take with reference to the welfare of the children. It makes a significant difference that this amendment is a guideline to the court of the desires of this House concerning the way education should be incorporated into the future of children. It can still qualify as that under subsection (1). While I acknowledge the Minister has phrased his response in a more accommodating manner than earlier, the amendment is sufficiently important to be incorporated here as an integral part of the divorce regime and not simply left to the legislation concerning children.
Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 26
26; Níl, 26.
Tá
- Belton, Louis J.
- Burke, Paddy.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Hayes, Brian.
- Henry, Mary.
- Howard, Michael.
- Kelly, Mary.
- McAughtry, Sam.
- McDonagh, Jarlath.
- Magner, Pat.
- Maloney, Seán.
- Manning, Maurice.
- Neville, Daniel.
- O'Sullivan, Jan.
- Reynolds, Gerry.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
Níl
- Bohan, Eddie.
- Byrne, Seán.
- Cassidy, Donie.
- Daly, Brendan.
- Dardis, John.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Kelleher, Billy.
- Kiely, Rory.
- Lanigan, Mick.
- Lee, Joe.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Mulcahy, Michael.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Toole, Joe.
- Ormonde, Ann.
- Quinn, Feargal.
- Roche, Dick.
- Wright, G.V.
Tellers: Tá, Senators Cosgrave and Magner; Níl, Senators Lee and Fitzgerald.
Question declared carried.
There is an equality of votes and therefore, pursuant to Article 15.11.2 of the Constitution, I have to exercise my casting vote. I vote for the question, that is, "That the words proposed to be deleted stand".
Amendment declared lost.
An Leas-Chathaoirleach
Amendment No. 11 is a drafting amendment. Amendment No. 21 is related and both may be discussed together by agreement.
Government amendment No. 11:
In page 30, line 12, to delete "Court" and substitute "court".
Amendment agreed to.
An Leas-Chathaoirleach
Recommital is necessary in respect of amendments Nos. 12 and 13 as they do not arise out of Committee proceedings. I ask the Leader to move the motion for recommital.
I move: "That the Bill be recommitted in respect of amendments Nos. 12 and 13."
Bill recommitted in respect of amendments Nos. 12 and 13.
Government amendment No. 12:
In page 30, to delete line 20 and substitute the following:
"(d) section 11, 12, 18 or 21.".
This is a technical amendment.
Amendment agreed to.
Government amendment No. 13:
In page 30, to delete line 26 and substitute the following:
"(d) section 11, paragraph (a) or (b) of section 12 (1) or paragraph (a), (b) or (c) of section 21 (1),".
Section 24 (d) of the Bill provides that, where an appeal is brought from an order for payment of maintenance under the Bill, the operation of the order shall not be stayed unless the court that made the order to which the appeal is brought directs otherwise. The amendment extends the provision of section 24 to cover variation of maintenance orders also granted under section 21 (1) of the Bill.
Amendment agreed to.
Amendments Nos. 12 and 13 reported and agreed to.
Government amendment No. 14:
In page 33, line 21, to delete ",20".
Amendment agreed to.
An Leas-Chathaoirleach
Recommital is necessary in respect of amendments Nos. 15 to 17, inclusive, as they do not arise out of Committee proceedings. I ask the Leader to move the motion for recommital.
I move: "That the Bill be recommitted in respect of amendments Nos. 15 to 17, inclusive."
Bill recommitted in respect of amendments Nos. 15 to 17, inclusive.
Government amendment No.15:
In page 36, line 21, after "this Act", to insert ",the Act of 1964".
Amendment agreed to.
Government amendment No. 16:
In page 36, between lines 28 and 29, to insert the following:
".—Section 117 (6) of the Act of 1965 is hereby amended by the substitution of ‘6 months' for ‘twelve months'.".
Section 117 of the Succession Act, 1965, provides that, where an application is brought by or on behalf of a child of a parent who dies testate, the court is of the opinion that the testator has failed in his or her moral duty to make proper provision for the child in accordance with his or her means, whether by will or otherwise, the court may order that such provision shall be made for the child out of the deceased parent's estate as the court thinks just.
Under section 117(6), an order shall not be made unless the application has been made within 12 months from the first taking out of representation of the deceased's estate.
Section 15(a) of the Family Law Act, 1995, and section 17 of this Bill provide that the court may order provision to be made under certain circumstances for a spouse out of the estate of the other spouse where a decree of divorce or a judicial separation has been granted and succession rights have been extinguished. Applications under these sections must be made not more than six months after representation is first granted under the Succession Act, 1965, in respect of the estate of the deceased spouse. The amendment brings the provisions of section 117 as respects the period for making applications into line with sections 15(a) of the 1995 Act and section 17 of this Bill. The purpose is to bring the timescale into line for all three at 12 months.
Does that not, at the same time, limit the capacity of people under section 117 of the 1965 Act which was one of the most enlightened pieces of legislation enacted by the Oireachtas? If we are to reduce the time for applying from 12 months under the provisions of that Act to six months now——
No. We are increasing from the six months under the Bill to the 12 months in the 1965 Act.
I support the amendment on that basis.
Amendment agreed to.
Government amendment No. 17:
In page 36, between lines 29 and 30, to insert the following:
"(a) in subsection (4) (a) (inserted by the Pensions (Amendment) Act, 1996) of section 5, by the substitution of ‘paragraph (c) or (cc) of section 10 (1)' for ‘section 10 (1) (c),"'.
This is a purely technical amendment to the Pensions Act, 1990.
Amendment agreed to.
Amendments Nos. 15 to 17, inclusive, reported and agreed to.
An Leas-Chathaoirleach
Recommital is necessary in respect of amendments Nos. 18, 19, 20, 23, 24 and 26 as they do not arise out of Committee proceedings. I ask the Leader to move the motion for recommital.
I move: "That the Bill be recommitted in respect of amendments Nos. 18, 19, 20, 23, 24 and 26."
Bill recommitted in respect of amendments Nos. 18, 19, 20, 23, 24 and 26.
An Leas-Chathaoirleach
Amendments Nos. 18, 19, 20, 22, 23, 24, 25 and 26 are related.
Bill recommitted in respect of amendments Nos. 18 to 20, inclusive.
Government amendment No. 18:
In page 38, to delete lines 20 to 24 and substitute the following:
"(a) in section 8—
(i) in subsection (1), by the insertion of ‘or at any time thereafter' after ‘separation',
(ii) in paragraph (c) (i) of that subsection, by the insertion of ‘or' after ‘so specified', and
(iii) in subsection (4), by the substitution of ‘the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned' for ‘either of the spouses concerned'.".
These amendments are technical amendments, the main purpose of which is to bring a number of provisions in the Family Law Act, 1995, into line with the provisions in this Bill or simply to make some small drafting changes to provisions in the 1995 Act.
Amendment agreed to.
Government amendment No. 19:
In page 39, to delete lines 1 and 2 and substitute the following:
"(e) in section 12—
(i) in subsection (1), in the definition of ‘relevant guidelines', by the substitution of ‘paragraph (c) or (cc) of section 10 (1)' for ‘section 10 (1) (c)', and
(ii) in subsection (18), by the substitution of ‘40' for ‘41'.".
Amendment agreed to.
Government amendment No. 20:
In page 39, lines 28 and 29, to delete "adequate and reasonable financial provision" and substitute "proper provision in the circumstances".
Amendment agreed to.
Amendments Nos. 18, 19 and 20 reported and agreed to.
Government amendment No. 21:
In page 39, line 34, to delete "Court" and substitute "court".
Amendment agreed to.
Government amendment No. 22:
In Government amendment No. 40, as agreed in Committee, to delete:
"(c) an order has been made in favour of the spouse," and substitute:
"(c) an order has been made under this section in favour of the spouse,".
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 23 and 24.
Government amendment No. 23:
In page 40, line 27, after "separation", to insert "or at any time thereafter".
Amendment agreed to.
Government amendment No. 24:
In page 40, to delete lines 35 to 38 and substitute the following:
"(h) in section 16 (1)—
(i) by the insertion of ‘15A,' after ‘14,',
(ii) by the substitution of ‘exists or will be made' for ‘is made', and
(iii) by the substitution of ‘proper' for ‘adequate and reasonable'.".
Amendment agreed to.
Amendments Nos. 23 and 24 reported and agreed to.
Government amendment No. 25:
In Government Amendment No. 41, as agreed in Committee, to delete:
"(c) an order has been made in favour of the spouse," and substitute:
"(c) an order has been made under this section in favour of the spouse,".
Amendment agreed to.
Bill recommitted in respect of amendment No. 26.
Government amendment No. 26:
In page 40, between lines 45 and 46, to insert the following:
"(k) in section 29, by the insertion of the following subsection after subsection (10):
‘(11) In this section a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996.'.".
Amendment agreed to.
Amendment reported and agreed to.
I must apologise to Senator O'Kennedy and the House. I inadvertently misled him on amendment No. 16. The amendment is to section 117 of the Succession Act, 1965, by the substitution of six months for 12 months. I was mistaken in that and I regret it. The position was as I read it out initially. The text of the amendment clearly indicates that the 12 month period in the 1965 Act is being reduced to six months to accord and equate with the position in this Bill.
I accept the Minister's bona fides in this matter and his statement of regret. I regret that this provision restricts the time limit related to the provisions of that enlightened legislation. It was the first Bill with which I was involved in the Seanad in 1965. It is recognised as being among the most enlightened legislation. I regret that the time within which people can apply for their legal rights under the 1965 Act are to be restricted from 12 months to six months. I appreciate the Minister's statement.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
We have now completed all stages of the Family Law (Divorce) Bill, 1996 in the Seanad and it will be returned to Dáil Éireann for consideration of the amendments made in this House. This is an historic day.
The process upon which the Government embarked in January 1993 which culminated in the Family Law (Divorce) Bill was at times difficult. I thank Senators who were supportive in that task. Irish society has cherished the family and no one really salutes the introduction of divorce. Nevertheless, the mature decision of the people in the divorce referendum was an acknowledgement of the need to address the painful problem of marriage breakdown.
When the Government put to the people its proposal for an amendment to the Constitution to allow for divorce it also set out clearly in a draft Bill the nature of the provisions which would be put in place should there be a positive outcome to the referendum. The Family Law (Divorce) Bill keeps faith with that commitment and is loyal to the decision of the people. I thank Senators for their assistance with the Bill. In particular, I thank Senator O'Kennedy for his generosity in regard to the amendment relating to the Succession Act, 1965.
I express my deep appreciation to Senators for their fine contributions all of which have been beneficial. I also thank the staff of my Department who have worked long and hard on the Bill.
This is an historic day. I thank the Minister for his personal commitment to this legislation. I regret that, for whatever reason, he was not open to many of the important amendments proposed in the Dáil and Seanad. I thank him for accepting my amendment on Report Stage.
Many others deserve our gratitude and history will record their contributions to the social development of our country. Ms Mags O'Brien of the Divorce Action Group deserves special mention. The relief which this legislation will bring to many people is due in no small part to her group and its hard work and dedication. It is appropriate to recognise that the enactment of this legislation is not just the achievement of those who campaigned in recent times but is the result of 30 years of debate and discussion. I congratulate all who took part in the campaign over that time. I actively supported and campaigned for divorce. I see it as a necessary relief for many couples trapped in the tragic circumstances of a failed marriage. It is a basic right for them to be able to put that behind them and move on to a future loving relationship.
Mr. Des Hanafin and others campaigned against divorce. I respect their views and I understand their concerns. With certain obvious exceptions I congratulate them on their campaign. Over the years their input has allowed us to refine our views on divorce until they properly reflected what the people wanted.
In the referendum the people gave us a mandate for this change and I was conscious throughout this debate that it was important to act within that mandate. In this debate the Minister has committed himself to changes in other legislation and I remind him of those commitments. Of particular importance is the issue of the rights of access to children for members of the non-custodial parent's family where that parent does not exercise a right of access. Typically that parent would live abroad and access would be given to the child's grandparents. This is important for the children involved. The Minister has committed himself to including this measure in a proposed Children Bill and I urge him to bring that forward as soon as possible.
This is an important day in Irish history. The legislation addresses a social problem in society. However, despite its importance it will not radically change society. When it is enacted the vast majority will see no change in their lives but the lives of those affected by marriage breakdown will change for the better. We must monitor the legislation once it is enacted. We must ensure it works in the manner which we contemplated. We must also ensure resources are put in place to support all the measures in this Bill and, in particular, we must guarantee the provision of an efficient and accessible family court system to ensure access to divorce is available to those who need it, regardless of means. I thank all concerned and I hope we have served the people well on this issue.
This is indeed an historic day. I do not know whether, on balance, it will be remembered as historic for good or for evil. I hope the best will emerge because there is good and bad involved.
I congratulate the Minister on the manner in which he has discharged what was an onerous responsibility in the present political circumstances. He has done so with a degree of restraint, dignity and decorum which has been an important contributory factor to the relative civility with which the matter has been discharged. As I said, the Minister has the enviable ability to present the most unreasonable viewpoints in the most reasonable manner. That is extremely important in terms of the society in which we live.
There was an unfortunate misunderstanding about a vote this afternoon. I regret that and I ask the Minister to accept that it was a genuine misunderstanding. I congratulate him on the manner in which he has discharged his responsibilities. It is a credit to him and to the legislative process, whatever one may think of the consequences of the legislation.
I compliment the Minister on the manner in which he has presented this Bill and debated the issues. It was an example of courtesy and reason. While I hold a different viewpoint on the issues, it is important in giving effect to the decision of the people in the referendum that we address the issues in a rational and responsible way. I thank the Minister for his bona fides in relation to the presentation of all relevant facts as he was aware of them.
Many will come to regret this historic day. The terms of the Bill have within them a momentum for what was not intended by the Minister but which will follow. The Government and the Minister have presented the Bill as enshrining a right to remarry. It is more correct to say that it is enshrining a right to remarry and to divorce. The pattern in other countries clearly demonstrates that this legislation will not just give rise to divorce and remarriage on one occasion it will be found that the instance of divorce will be proportionately much higher in second unions than in first unions and, similarly, with third unions. Is there a reason to think that Ireland will be different? This legislation has been passed in the knowledge of the experience of other countries and I regret that particularly in the interests of children about whom the Minister is concerned.
As often as not, breakdown occurs because of a lack of unselfish concern on the part of spouses breaking up. This has always been a feature of family and married life in Ireland. Children will be the victims and I have met such children in other jurisdictions. They get married and unfortunately because there is a lack of stability in their relationships they get a divorce. I regret greatly that the stability of marriage which is a feature of this society will be undermined. I know that this is not deliberate.
I regret that section 5 which refers to collusion between the two parties is included. I acknowledge that this is not intentional, the courts can only interpret the Bill as passed. There is no way that a court will be able to say that people in the same house were not living apart for at least four years. Neither could a lawyer or court say that they know from their knowledge of the individuals' private and personal relationships that they have not been living apart. That provision, which may have been introduced with good intention, will give rise to collusion on the part of those who want to get a quickie divorce. Who can question or much less contradict them? It is unreasonable to expect that people will not abuse this broad provision because they will be entitled to rely on what is written into the Bill.
I regret that people who are in a position of irretrievable breakdown will now be free from that burden. I accept it but it will have other consequences. No longer will marriage be a permanent binding contract between two people. It will not and cannot be such by definition because now it will be "until divorce do us part." It will have a great effect on society and on marriages which have run into difficulties. Whoever can tell me about a marriage which has not had difficulties has found an extraordinary human experience. People work to effect a reconciliation and put aside their immediate personal interest in the interest of the harmony of both and the children. Unfortunately, with the passage of this legislation the effort required to do so will not be encouraged to the same extent.
It is an historic day. I hope that my fears will not be realised. Long after we have left the Oireachtas perhaps somebody reading these debates will say I was wrong. I hope they will but I greatly fear they will not be able to do so.
The Minister said the fact that all stages of a divorce Bill had been passed is not necessarily a cause for great joy. Divorce is always difficult and traumatic, frequently messy and leaves great hurt but on many occasions it is the only solution. I am glad this enlightened legislation exists though it is not the last word. There will be a need for changes in legislation as the years go by as there is a growing body of family law practitioners working at a high professional and humane level. The legislation which will be on the Statute Book shortly is as good as can be achieved at this time. The Minister and his officials are to be greatly commended. I do not share the Cassandra-like gloom of my friend and colleague, Senator O'Kennedy, but only time will tell which of us is right. There is a counter argument to every point he made and for the most part they are stronger than his points.
As a society we have come a long way since 1924 when these Houses made divorce illegal and 1937 when the prohibition on divorce was included as a fundamental part of our law. It has been a long, bruising and divisive debate but it has been handled well. The scars have healed and when the new divorce regime is in place people will not notice huge changes. The tenor of society will not be greatly upset and an opportunity will be given to a great number of people to either remarry or regulate lives and their children's lives in a way that is more ordered and certain than is the case at present.
It has been a long and arduous path for the Minister. As Senator O'Kennedy said, he has handled the debate with great civility, courtesy and seriousness. He listened to people and when he did not agree with them he always gave reasons. Whether we agreed with them or not the response was always based on solid argument rather than on prejudice or caprice. I also commend Senator McGennis. Here contributions during the debate have been consistently principled, spirited and gusty. I listened to all of the debate and the contributions were consistently high without any personalities or bickering and a great sincerity was brought to it. I single out Senator McGennis for her contribution and her courage during the debate.
Only time will tell whether Senator O'Kennedy and his view prevail. Let us hope it is that view.
I hope Senator Manning's view prevails.
Question put and agreed to.
Sitting suspended at 4.50 p.m and resumed at 5 o'clock.