Select Committee on Legislation and Security díospóireacht -
Tuesday, 16 Jul 1996

SECTION 7.

Ms O'Donnell

I move amendment No. 19:

In page 11, between lines 11 and 12, to insert the following subsection:

"(4) Where an application is made to the court for the grant of a decree of divorce, or prior to the hearing of such application, an application is made to the court for an order under Part III, the court may, if it thinks fit, inquire into the matters certified in accordance with section 5 (4) (a) or section 6 (4) (a); and if the court is not satisfied that the requirements of section 5 (2) and (3), or, as the case may be, section 6 (2) and (3) have not been adequately met, the court may adjourn the proceedings until such time as it is satisfied that those requirements have been met.".

Sections 5 and 6 require a solicitor to certify that he or she has discussed with the client the possibility of reconciliation, a mediated settlement, effecting a separation by agreement and the alternative of a judicial separation. At present there is no mechanism for the court to satisfy itself these actions have been adequately performed and concerns have been expressed that these requirements will be treated simply as a formality. Accordingly, the purpose of this amendment is to empower the court to adjourn proceedings until such time as the requirements of sections 5 and 6 have been complied with. This can be done at the hearing of the application for a decree of divorce or at the hearing of the application for one of the range of preliminary orders set out in Part III of the Bill.

Mr. Taylor

The effect of this amendment is to allow the court to adjourn divorce proceedings where the court is satisfied a solicitor has not met the requirements in sections 5 and 6 which provide safeguards to ensure the awareness of the parties involved of alternatives to those proceedings. The effect of section 5 (4) (a) and section 6 (4) (a) as they stand is that where a solicitor does not submit a certificate indicating that the requirements as set down in sections 5 and 6 have been complied with, the court may adjourn proceedings to enable the requirements of those sections to be met. Given that this amendment would not appear to add anything of substance to the operation of sections 5 and 6, I do not propose to accept it.

Dr. Woods

This section goes half way to what we suggested. It deals with the question which arises about the nature of the work done by the solicitor. The solicitor may only provide a couple of names of counsellors to a person and may not deal adequately with any of the other areas which have to be certified. This amendment enables the court to inquire how real the certificate is, which covers part of our point. The court has to be satisfied that these certificates are real. In relation to counselling, we have to make sure what is happening is real and that certificates are not just a token. Counselling is an example where the court should be satisfied the requirements are met satisfactorily.

We support this amendment on those grounds. It partly covers the kind of situation we are trying to deal with in our amendments. We must ensure the procedure is real, that it gets time and attention and it does not become a formula dealt with in an executive or bureaucratic fashion. We are talking about people, the breakdown of a marriage, the conflicts which arise, and the children who can be damaged as a result. This amendment seeks to ensure that the intentions which the Legislature has and the intentions the people had in their constitutional amendment are delivered and consequently that real supports and safeguards are provided. I support this amendment. I ask the Minister to think again and look at the intention of Deputy Keogh and Deputy O'Donnell in putting down this amendment.

Ms O'Donnell

I know the Minister feels this amendment is unnecessary and redundant. I agree with Deputy Woods that there is an obligation on us to make sure the provisions we are putting in place in pursuance of the vote of the people are not just formalities but are real and substantial. Family law matters and legal procedures become formalities quickly. There should be an effort by the court to consider the gravity of the situation, the seriousness with which issues relating to children should be addressed and the other concerns the court must have in determining whether an order of divorce should be made. It is imperative that these formalities are real and that the court should take them seriously. The purpose of this amendment is that there should be a mechanism for the court to satisfy itself that matters have been performed by solicitors, rather than just treated as a genuflection towards the aspirations we have addressed.

I will reconsider the amendment and discuss it with Deputy Keogh who will have the opportunity of reintroducing it on Report Stage.

Amendment, by leave, withdrawn.

Section 7 agreed to.